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2013 ARCHIVES

WHAT ARE MY DAMAGES UNDER THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013
  The TCPA allows you to seek an injunction (a court order for them stop the illegal activity), and also for actual or statutory damages, whichever is greater. Statutory damages are those damages specified by law for a violation. TCPA violations bring statutory damages of $500-$1500 PER CALL. This means that EVERY SINGLE CALL that violates the TCPA can bring damages of $500-$1500. If your number that was called is listed on the Do Not Call registry, you may be able to stack the damages for each call, meaning a single call may carry up to $3000.00 in statutory damages. Actual damages are any out of pocket loss suffered by you as a result of the TCPA violation. For instance, if your job requires you to have your cell phone on, but the incessant calls to your cell phone caused you to be terminated from employment, then you can recover actual damages for your economic loss and emotional distress in being fired. Also, the court in Soppet (see above) has held that the use of airtime minutes on a cell phones constitutes "out of pocket" damages. If the court finds that the defendant willfully or knowingly violated the regulations under the TCPA, the court may, in its discretion, increase the amount of the award to not more than 3 times the amount of the statutory damages described above. In determining "willfulness", one can look at 47 USC S 312(f). 47 USC S 312(f)(1) The term "willful", when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States. Although neither the TCPA nor the FCC regulations define the terms "willfully or knowingly", courts have generally interpreted willfulness to imply only that an action was intentional. Smith v. Wade (1983) 461 U.S. 30, 41 n.8. The Communications Act of 1943 defines willful as "the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision, rule or regulation." Moreover, the FCC in In re Dynasty Mortgage, L.L.C. (2007) 22 F.C.C.R. 9453 has stated "Willful" in this context means that the violator knew that he was doing the act in question, in this case, initiating a telephone solicitation and A violator need not know that his action or inaction constitutes a violation; ignorance of the law is not a defense or mitigating circumstance. Therefore, it is clear that, to trigger the treble damages provision to request $1500.00 per call, one need only show that the violator knew they were making a telephone call and intended to make the call However, there is a four-year statute of limitation on TCPA violations, so be sure to document your case in order to build your proof.

HOW TO DOCUMENT TCPA VIOLATIONS TO BUILD A CASE:

  • Jared Hartman, Esq.
  • Posted on December 16, 2013
 
  1. Try to answer your every call so that the call will appear on your phone bill, as most phone companies will not keep a record of missed calls. Even if a voicemail is left, your phone record will not show the call was ever made. The only way to make sure your phone record logs the call is to answer the call, ask who they are, and then hang up on them!
  2. Google the phone number and read what others have to say on popular websites "1 800 notes, "whocalledus" and other website bulletin boards.
  3. Take screenshots or some other photo of the specific caller ID, showing the date and time of call.
  4. Save all voice messages to your computer, as most phones will automatically delete messages after a few days. Saving the voice message is important for proof of a pre-recorded or artificial voice message.
  5. Obtain and save all phone records and highlight incoming calls from debt collectors and telemarketers.
  6. Keep track of the following information in a hand-written diary: 1) date of call, 2) time of call, 3) caller ID, 4) Caller’s identity, 5) Summary of conversation.
  7. Always send a letter revoking consent just in case you have forgotten whether you have previously given them your number. In your letter, simply state, "I do not believe I have ever given you consent to call me. I am hereby insisting that you stop calling me for any purpose whatsoever." Then send this letter via certified mail as proof it was sent, because they will always deny you sent it.
  8. Then call us for a FREE CONFIDENTIAL consultation to evaluate whether you have a valid lawsuit.

WHAT IS A VIOLATION OF THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013
  The TCPA protects calls to consumers’ cell phones, residential lines, and to any number registered on the "Do Not Call List" (DNC). Regarding cell phones-47 U.S.C. S 227(b)(1)(A)(iii): The TCPA makes it unlawful for any person within the United States to make any call using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to a cell phone line without prior express consent and without emergency purposes. 47 U.S.C. S 227(b)(1)(A)(iii). The TCPA defines ATDS as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C S 227(a)(1). According to the FCC, an ATDS is any telephone equipment that has the capacity to dial numbers without human intervention. Therefore, if the telephone equipment has the potential to be programmed to make auto dialed calls, then it is considered an ATDS and is regulated by the TCPA and the FCC. See Satterfield v Simon (9th Cir. 2009) 569 F.3d 946. Predictive dialers are also regulated in a similar fashion as an ATDS, because they have the capacity to dial numbers "without human intervention", as it is equipment that utilizes lists or databases of known, nonrandom telephone numbers." See Griffith v. Consumer Portfolio Serv., Inc., 838 F. Supp. 2d 723. It is usually pretty easy to tell if you have received a call from an ATDS, because upon answering the phone you are first faced with dead air, and then you hear some clicking noises, and then you finally hear a pre-recorded voice message or your call is transferred to a live person. The courts have ruled that someone receiving a call with a robotic message is a factor to consider as circumstantial evidence that the call was placed with an ATDS. See Vaccaro v. CVS Pharm., Inc., (Southern District Calif. 2013) 2013 U.S. Dist. LEXIS 99991. The TCPA applies to all cell phones whether used for business or personal use, and does not require the consumer to answer the call in order to establish a violation. The only defenses are if the call was placed for emergency purposes-such as the City informing you of an impending disaster, which is very rare-or consent. A consent defense to a TCPA lawsuit against a telemarketer usually arises because you previously gave the caller permission to call you. A consent defense to a TCPA lawsuit against a debt collector usually arises because you provided your cell phone number on the credit application or in connection with the transaction that resulted in a debt. You do not have to actually agree to receive robo calls for a consent defense to apply; it is enough if you simply gave your number to the creditor or debt collector. Even if you just gave your number to the original creditor, then the consent defense still applies to a third party debt collector trying to collect a debt that you may owe to someone else. The only way to prevent this consent defense is if you revoke consent. Revocation can be orally by simply telling them during a phone call to stop calling you. However, they always deny that you revoked consent, so the best way to revoke consent is by sending a certified letter asking the creditor/collector to stop calling your cell phone. Sometimes companies will accidentally call the wrong person, because of how often consumers change cell phone numbers. Even if a company was legitimately trying to call someone who had previously given them consent, but you now have that person’s number, then the consent defense does NOT apply to you because you—the subscriber receiving the unwanted calls-did not give them consent. In Soppet v Enhanced Recovery Co (7th Cir 2012), 679 F.3d 637, the court held that caveat emptor (buyer beware) applies to a company dialing the wrong number and even suggested that the collector seek indemnification against the original creditor (jointly liable) for its TCPA violation losses. It does not even matter if you legitimately owe the debt upon which a debt collector is calling about. Also, callers who have obtained your number from skip tracing (obtaining your cell number from some other source like consumer credit reports or court papers) are violating the TCPA because they did not obtain your number from you directly. Sometimes a company may obtain your cell number by capturing it on its own caller ID, which also does NOT amount to a consent defense. The bottom line, if you are receving calls to your cell phone with either and ATDS or with pre-recorded or artificial voice messages, it is worth your time to contact us to fully evaluate your circumstances to determine if your rights have been violated. Regarding calls to residential lines 47 U.S.C. 227(b)(1)(B): The TCPA prohibits "Artificial or Prerecorded Voice" messages for calls to residential line phones. Auto-dialed calls to a residence line are never a violation of the TCPA, because for whatever reason Congress did not write that prohibition into the law. Additionally, this TCPA section only applies to telemarketing solicitations from sellers with which the consumer does not have an "Established Business Relationship" (EBR). If the seller uses a telemarketing contractor who violates the TCPA, then both seller and telemarketer are jointly liable. If you have done business with a seller within the last eighteen months or made inquiry within the last three months, then the TCPA presumes that you have an EBR with that seller, absent evidence to the contrary. Evidence to the contrary would be a letter to the seller or telemarketer requesting that they stop calling you, and this letter should be sent via certified mail as proof of it having been sent (they always deny that you sent the cease contact letter). Unfortunately, calls from debt collectors to residential lines are not illegal, even if the collector mistakenly calls a person who does not owe the debt. A consumer's remedy in this situation would be under the Fair Debt Collection Practice Act (FDCPA), for harassment where the collectors continue to call after the consumer has pointed out the mistake and requests them to stop. Because here is no need to prove that the caller is using an ATDS under this TCPA section. The consumer only needs to show that the call is a solicitation and that seller used an artificial or pre-recorded voice message. Regarding Telemarketing Calls to "Do-Not-Call" Numbers- 47 USC 227(c)(5): This section only applies to telephone solicitation calls. Anyone whose numbers are registered on the DNC list that has received two telemarketing calls within a twelve month period can sue for all calls including the first. It does not matter if calls are live, pre-recorded, or placed with an ATDS. This section applies to calls to both cell phone and residential lines that are registered on the federal or company specific do-not call lists. It is easy to register your numbers on the national DNC list. Simply Google the "Do-Not-Call Registry" and register up to three numbers on its website. You will receive email confirmation of your registration, which you must keep record of as evidence in your favor.

WHAT IS THE TCPA?

  • Jared Hartman, Esq.
  • Posted on December 16, 2013
  The acronym TCPA stands for the Telephone Consumer Protection Act, and is codified at 47 U.S.C. S 227. Congress enacted this law in 1991 with the intention of protecting individuals' privacy rights, because of the spike in complaints from consumers about unwanted and unrelenting phone calls. In the Legislative Intent and Purpose of the TCPA, Congress found that unwanted automated calls were a "nuisance and an invasion of privacy, regardless of the type of call". Banning these unwanted calls was "the only effective means of protecting telephone consumers from this nuisance and privacy invasion". One member of Congress made the following statements when discussing the need to pass the TCPA, "Computer telephone calls are invading our homes and destroying our privacy". Consumers around the country are crying out for Congress to put a stop to these computerized telephone calls. Congress has a clear opportunity to protect the interests of our citizens, and we should not pass up this chance. Computerized telephone calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall. These machines are out of control, and their use is growing by 30% every year. It is telephone terrorism, and it has got to stop.

OREGAN WOMAN AWARDED $18.6 MILLION JURY VERDICT AGAINST EQUIFAX FOR FAIR CREDIT REPORTING ACT VIOLATIONS.

  • Jared Hartman, Esq.
  • Posted on November 22, 2013
  For two years an Oregon woman tried and tried and tried to ask Equifax to correct the mistakes on her credit report. She discovered in 2009 that information belonging to someone else with the same name was being mixed into her credit report (known as a “mixed credit report”), including the other woman’s birthdate, social security number, negative credit information, among other wrong information. She only discovered the inaccuracies when she was denied a line of credit. The unfortunate woman tried many times to have these mistakes corrected and to have her credit report cleaned up. All credit reporting agencies other than Equifax followed through with their responsibilities. Because Equifax repeatedly denied any wrongdoing and repeatedly failed to correct their mistakes, they were sued for violations that included 15 U.S.C. §§ 1681i(a)(1)(A) & (a)(5)(A) of the Fair Credit Reporting Act (FCRA). These Sections of the FCRA require the credit reporting agency to conduct a reasonable investigation into a dispute lodged by a consumer within 30 days, and to either delete the information if they fail to conduct the dispute within 30 days, delete the information if they cannot verify its accuracy, or modify the information if they discover the correct information. Failure to comply with these requirements could result in damages owed to the consumer for any actual damages sustained as compensation for any financial harm or physical or emotional injury arising out of the violation, or statutory damages of $100-$1,000 for every willful violation, and any punitive damages that the court may allow. Also, a successful lawsuit guarantees that the offender will pay your attorney’s fees and costs of litigation, which means you will not have to pay any money in connection with filing the lawsuit. Because Equifax repeatedly ignored the woman’s efforts to correct her credit report and repeatedly denied any wrongdoing, the jury found them in violation of the FCRA and awarded her $180,000 in actual damages plus $18.4 Million in punitive damages! Read the news reports at the links below:

DOES YOUR CREDIT SCORE CONTAIN INACCURATE INFORMATION?

  • Jared Hartman, Esq.
  • Posted on November 16th, 2013
  Debt collectors and creditors often furnish inaccurate information to credit reporting agencies. Even if the inaccuracy is something so simple as putting the wrong date of default, it may still have serious consequences when you apply for a new loan, line of credit, or even for certain professional licenses. Also, the date of default is what dictates how long the negative item will stay on your credit report, and if the date of default is being reported as more recently than what the default actually was, then the negative item will stay on your credit report for longer than it actually should. DO NOT JUST IGNORE IT—ignoring the inaccuracies means they will be able to continue to mis-report the information, which may eventually hurt you in the future. Taking care of the inaccuracy now will help prevent future harm to you. Both the Federal and California laws allow a consumer to sue the furnisher of information, and you may be entitled to receive any actual damages suffered from their inaccurate reporting, or up to $1,000.00 per violation under the Federal law or up to $5,000.00 per violation under the California laws, depending on what type of violation they have committed. HOWEVER, it is not as easy as you might think to sue the furnisher of information under the Federal laws for inaccurate reporting. One of the ways the U.S. Legislature has tried to help the business industry from frivolous lawsuits is that they only permit a private lawsuit if the furnisher of the information fails to conduct a reasonable investigation into disputed information after being notified by the credit reporting agency that you are disputing the inaccurate information. YOU LODGING THE DISPUTE WITH THE FURNISHER ONLY DOES NOT TRIGGER CIVIL LIABILITY UNDER THE FEDERAL LAWS. Only if the furnisher receives a notice of dispute from a credit reporting agency does their failure to conduct a reasonable investigation into the dispute trigger liability for a civil lawsuit. If you only send the dispute to the furnisher and you do not dispute the inaccurate reporting with the credit reporting agency, then you cannot sue the furnisher under Federal law. See 15 U.S.C. 1681s-2(b). You are also not able to sue the furnisher under Federal laws simply for supplying the inaccurate information to the credit reporting agency. You can only sue for their failure to conduct a reasonable investigation, as explained above. However, 15 U.S.C. 1681s-2(c) and (d) permit State and Federal officials to enforce the furnisher’s obligation to supply accurate information, and you should report any such inaccuracies to the Federal Trade Commission, the State Attorney General, and also lodge a dispute with the credit reporting agency to begin the process for triggering a civil lawsuit. On the other hand, California laws are more favorable to the consumer. There is no obligation at all for the consumer to lodge a dispute with the credit reporting agency or the furnisher in order to trigger liability in a civil lawsuit for furnishing inaccurate information! See California Civil Code 1785.25(a). However, California laws could entitle you to receive punitive damages of up to $5,000 per violation if their violation was committed willfully (if they either knew or should have known of the inaccuracy of the information). Although there are some hoops to jump through, here is the bottom line if any inaccurate information is being reported on your credit report:
  1. File a complaint with State and Federal officials to enforce their authority upon the violator.
  2. Lodge a dispute with the credit reporting agencies in order to trigger the civil lawsuit process under the Federal laws. If they fail to amend or remove the inaccurate information, then you may have a lawsuit under the Federal laws for their failure to conduct a reasonable investigation after being notified of a dispute. THIS DISPUTE MUST BE LODGED WITH THE CREDIT REPORTING AGENCIES.
  3. Also lodge the dispute with the furnisher of the inaccurate information, because if they fail to amend or remove the inaccurate information then you may be entitled to punitive damages under the California laws for their willful violations.
  4. KEEP COPIES OF ALL CORRESPONDENCE AS PROOF, AND SEND LETTERS VIA CERTIFIED MAIL AS PROOF OF THEIR RECEIPT, AND TAKE DETAILED NOTES OF EVERY EVENT.
  5. Call us for a free and confidential consultation to discuss how we can assist you in asserting your rights!

ARE CREDIT INQURIES LOWERING YOUR CREDIT SCORE?

  • Jared Hartman, Esq.
  • Posted on October 30th, 2013
  There are two ways a credit inquiry can be conducted on a consumer’s credit reports: a hard inquiry and a soft inquiry. A soft inquiry merely obtains the consumer’s person ID information, such as name and address. A hard inquiry allows the requester to obtain information more in depth towards the consumer’s credit (such as who else is conducting inquiries, how much debt you have, when you have defaulted on past credit, etc.). A soft inquiry will not appear as an inquiry on your credit report and therefore will not impact your credit score. However a hard inquiry does appear on your credit report and too many of them in a short period of time can and will lower your credit score, because it looks as if you are applying for too many lines of credit contemporaneously. It is strictly within the decision of the entity conducting the inquiry as to whether they will conduct a hard or soft inquiry, but if the entity needs to determine and evaluate your creditworthiness then the inquiry will most likely be a hard inquiry. Both the Federal and State Fair Credit Reporting laws require one conducting a credit inquiry to have a “permissible purpose” in conducting the inquiry, and both sets of laws establish what constitutes a permissible purpose. See, for example, Calif. Civil Code 1788.11 and 15 U.S.C. 1681b. The requesting entity does not need your permission to conduct the inquiry so long as they identify to the credit reporting agency that they have such a permissible purpose; yet most of them will ask for your approval just to cover themselves in case a dispute arises over their purpose for the inquiry. If the entity does not have such a permissible purpose, then they need your express permission to conduct the inquiry under both sets of laws. However, if the entity conducting the inquiry lies to the credit reporting agency about the true purpose of the inquiry (for instance, telling the credit reporting agency they have a permissible purpose but then using the information for a non-permissible purpose), then you can and should file a lawsuit for conducting the inquiry under “false pretenses”. If the improper inquiry has caused you actual damages, such as being denied a job, line of credit, or purchase money home loan, then you can recover those damages as compensation. If you do not have such actual damages, then you can still recover statutory damages as specified in the law. Either way, attorneys’ fees and costs of litigation are guaranteed to be paid by the party found to have violated the law, which means there is NO COST TO YOU for filing such a lawsuit. If you have any concerns over inquiries being conducted on your credit reports, then you should contact us immediately to discuss the circumstances in detail during a free and confidential consultation.

WHY DO WE SUE DEBT COLLECTORS?

  • Jared Hartman, Esq.
  • Posted on December 8, 2013
  "Your client allowed himself to go into debt in the first place, so it’s his fault for being harassed by debt collectors." We sometimes hear people make this statement when talking about suing debt collectors. People who have never had to deal with debt collection harassment and who have never had to go through the frustrating and unforgiving process of credit repair sometimes just don’t understand how it feels. The reality is, though, that the debt collection harassment laws were enacted by Congress to promote four guiding principles: 1) Truth, 2) Fairness, 3) Dignity, and 4) Respect. No-one wants to go into debt. Virtually every debt is incurred because of some form of economic hardship, such as unplanned-for interest fees, company lay-offs, inability to find a job in a tough economy, or even death or serious illness or injury within the family. Hardly anyone actually incurs a debt with the intention of never paying it back. Although debt collectors try to make it look like debtors are low-life people who had malicious intentions upon incurring the debt, this is almost always far from the truth. Everyone deserves to be treated with fairness, dignity, and respect, and deserves to be free from dishonesty and trickery from debt collectors. When debt collectors show no mercy or forgiveness, and fail to treat people with truth, fairness, dignity, and respect, they are generally violating the many laws that govern how debt collectors can operate their collection activities. Such violations undermine the integrity of our society and our economy, and allowing them to get away with simply shows them that they can continue their harassing conduct towards others. Before these laws were in place, debt collectors would often go to the extremes of threatening people with violence, falsely threatening that the debtor has committed a crime by failing to pay a debt, falsely threatening lawsuits, publishing in the media lists of “dead-beats” containing names of people who are in debt, and many other extremely disturbing conduct. These extreme violations are rare today, but they still do happen. Do not let them get away with it; YOU DO HAVE RIGHTS! Contact us TODAY for a free, confidential consultation to discuss what your rights are and to discuss the proper ways to assert your rights.
2014 ARCHIVES

UNSOLICITED TEXT MESSAGES TO YOUR CELL PHONE?

  • Jared Hartman, Esq.
  • Posted on April 11, 2014
  Receiving blast text messages from a company trying to solicit you to sign up for their services, or to enter a contest, or to receive some type of discount or coupon? Then you may be entitled to compensation for a violation of your privacy rights!! Many people don’t realize that the TCPA (Telephone Consumer Protection Act) not only protects people from unwanted robo-calls to your cell phone, but it also protects people from unwanted text messages as well! As you can tell from reading our other blogs on the TCPA, it is a federal law that allows a person to recover $500-$1500 per violation for receiving calls to a cell phone, without prior express consent and without emergency purposes, if the call is placed with either an auto-dialer and/or with pre-recorded or artificial voice messages. In order to keep up with the changing state of the times when most people utilize text messaging as a quick and easy way to communicate, business and telemarketers have tried to change their “auto blast” tactics to text messaging. The courts and the FCC have specifically stated that unsolicited text messages also constitute a “call” for purposes of the TCPA, because it is a method of trying to communicate with the phone subscriber without prior express consent and without emergency purposes. For instance, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir.2009) the 9th Circuit Court of Appeal held that text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a “call”. Further, in its opinion from February of 2012, the FCC specifically stated "The Commission has concluded that the prohibition encompasses both voice and text calls, including short message service (SMS) calls, if the prerecorded call is made to a telephone number assigned to such service." BE CAREFUL, though, when you opt in and opt out for text messages. If you send a text to a company to "opt in", or to receive a discount for their services, or to enter a contest, you may have inadvertently given consent to receive a blast of text messages that you didn’t really want. After you "opt out" by texting back with "STOP", they are allowed to send you one final confirming text message to make sure you actually meant to opt out. Any further messages beyond that one final confirming message is a violation. Contact us today to schedule a free confidential consultation to discuss your rights!

CONSUMER FINANCIAL PROTECTION BUREAU REPORTS ON DEBT COLLECTION COMPLAINTS

  • Jared Hartman, Esq.
  • Posted on March 25, 2014
  A governmental entity known as the Consumer Financial Protection Bureau (CFPB) exists to protect consumer’s rights. Not only does a consumer have the right to file a lawsuit against a company that has violated the person’s consumer rights, but the CFPB also has power to take complaints from consumers and enforce consumer rights by issuing civil penalties against companies that are in violation and may even seek closure of some businesses in extreme cases. The CFPB often issues reports regarding statistical data that they compile from complaints received by consumers. Below is a report that was recently issued by the CFPB regarding the types of complaints they see on a repeat basis, and the most concerning is that many people complain about being harassed about debts that they do not even owe! If you have been contacted by a debt collector about a debt you do not owe, then your consumer rights may have already been violated as well as the rights of the person who does actually owe the debt depending on what information was conveyed to you by the debt collector. Therefore, you should not hesitate to contact us to schedule a free, confidential consultation to evaluate whether your rights have been violated and whether you may be entitled to financial compensation as a result of their abusive debt collection practices. Report from the CFPB issued for immediate release on March 20, 2014:

CONSUMER FINANCIAL PROTECTION BUREAU: CONSUMERS REPORT BEING HOUNDED ABOUT DEBTS NOT OWED

Top Debt Collection Complaints Also Include Aggressive Communication Tactics and Threatening Illegal Actions WASHINGTON, D.C. - The Consumer Financial Protection Bureau (CFPB) today issued a report on the more than 30,000 consumer complaints it has received about the debt collection market. The report finds that many consumers complain that they are being hounded by debt collectors about debts they do not owe. Top complaints also include debt collectors’ use of aggressive communication tactics and threats of illegal actions. "Consumers should never be hounded about debts they do not owe," said CFPB Director Richard Cordray. "We will not tolerate companies harassing consumers or threatening illegal actions in the debt collection market. We will continue to work hard to ensure that consumers are treated with dignity and fairness." Debt collection is a multi-billion dollar industry. It is estimated that there are more than 4,500 debt collection firms nationwide. Banks and other original creditors may collect their own debts or hire third-party debt collectors. Original creditors and other debt owners also may sell their debts to debt buyers. Debt buyers may sell the debt, collect the debt themselves, or hire third-party debt collectors to do so. Approximately 30 million Americans had, on average, $1,400 of debt subject to collection in 2013. The main law that governs the industry and protects consumers is the 1977 Fair Debt Collection Practices Act (FDCPA). In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) revised the FDCPA, making the Bureau the first agency with the power to issue substantive rules under the statute. Today’s annual report to Congress highlights the Bureau’s efforts to carry out the FDCPA.

Consumer Complaints

The Bureau began accepting debt collection complaints in July 2013. These complaints quickly became the largest source of complaints each month. The Bureau received 30,300 debt collection complaints between July and December 2013. Companies have already responded to about 82 percent of the complaints the Bureau has sent to them for a response in that time frame. The top three complaints were about:
  • Collectors hounding consumers about a debt they do not owe: More than one-third of the complaints the CFPB handled were about a debt collector continually attempting to collect a debt that the consumer does not believe is owed. Of these complaints, almost two-thirds of consumers report that the debt is not theirs, while others report that the debt was paid, was the result of identity theft, or was discharged in bankruptcy.
  • Aggressive communication tactics used by debt collectors: Nearly a quarter of the complaints received by the Bureau were about debt collectors using inappropriate communication tactics. More than half of those complaints cite frequent or repeated calls from a collector and often the collector is calling the wrong phone number. Consumers also complain about debt collectors calling their places of employment or collectors using obscene, profane, or abusive language.
  • Taking or threatening an illegal action: About 14 percent of consumers report that a company is taking or threatening an illegal action. Most of these complaints are about threats to arrest or jail consumers if they do not pay. Other complaints relate to collectors threating to sue or attempting to seize property.

Taking or threatening an illegal action: About 14 percent of consumers report that a company is taking or threatening an illegal action. Most of these complaints are about threats to arrest or jail consumers if they do not pay. Other complaints relate to collectors threating to sue or attempting to seize property.

The CFPB took several important steps to protect consumers and create a level playing field for law-abiding debt collectors in 2013. The Bureau’s larger participant rule for debt collection became effective on January 2, 2013. Under this rule, the Bureau has supervisory authority over any firm with more than $10 million in annual receipts from consumer debt collection activities, which extends to about 175 debt collection companies. In November 2013, the Bureau took the first step toward considering consumer protection rules for the debt collection market with an Advance Notice of Proposed Rulemaking (ANPR). Through this ANPR, the Bureau is collecting information on a wide array of issues, including the accuracy of information used by debt collectors, how to ensure consumers know their rights, and the communication tactics collectors employ to recover debts. The Bureau can use the information it gathers to inform future rulemaking. The Bureau also pursued two debt collection enforcement actions in 2013. The Bureau sued an online loan servicer, CashCall Inc., its owner, its subsidiary, and its affiliate, for collecting money on loans that were legally invalid. The Bureau also ordered payday lender, Cash America International, Inc. to refund up to $14 million to consumers for robo-signing court documents in debt collection lawsuits. Through its ongoing supervision and enforcement activities, the Bureau will continue to prevent and deter debt collectors from violating the law. The Bureau issued sample letters consumers can use in dealing with debt collectors. These letters may help consumers obtain valuable information about claims being made against them or may help consumers protect themselves from inappropriate or unwanted collection activities. And the Bureau’s interactive online tool, Ask CFPB, contains more than 85 questions and answers related to the topic of debt collection. A copy of today’s report is available at: http://files.consumerfinance.gov/f/201403_cfpb_fair-debt-collection-practices-act.pdf

WHAT IF I AM SUED BY A DEBT COLLECTOR OR CREDITOR?

  • Jared Hartman, Esq.
  • Posted on March 16, 2014
  You MUST contact an attorney right away to evaluate your case! Debt collectors and credit card companies often file a high volume of lawsuits without all the necessary documentation to actually prove their case, and they often rely on false proofs of service that fraudulently claim the consumer was personally served. There have been many times where the debt collector or credit company wins default judgment against a consumer and then starts issuing levies upon the consumer’s bank accounts even though the debtor was not even aware she or he was sued because the proof of service fraudulently claims the consumer was served! There are also many times when a debt collector or credit card company files a lawsuit without sufficient proof to actually win the lawsuit because they don’t have proof that the person sued is actually the person who owes the debt or they don’t have proof that they are within the statute of limitations, but because the consumer was too afraid to appear in court they didn’t show up and then the debt collector or credit company gets default judgment for a case that they could not have even won in the first place! It is also a violation of consumer rights to be sued in an area of the state that is inconvenient and detrimental for the consumer to have to appear in. Even if the lawsuit is legit and the consumer has been personally served, the debt collector or credit company may have violated the Fair Debt Collection Practices Act in their methods of trying to collect the debt before filing the lawsuit, and they are therefore subject to a cross-complaint for their own legal violations. Many times the amount of money they owe the consumer for violating consumer rights far exceeds the amount of the alleged debt upon which they have filed the lawsuit in the first place. The bottom line is, if you are being threatened with a lawsuit or if you have received notice that you have been sued by a debt collector or credit company, YOU MUST CONTACT AN ATTORNEY RIGHT AWAY. Our offices provide free and confidential consultations to evaluate your case, and if we discover a basis to file a lawsuit against them for violating your consumer rights then we can represent you at NO COST TO YOU. We have been successful in having many lawsuits dismissed against our clients because the debt collection and credit companies have realized that our lawsuit against them for violation of consumer rights could far exceed any amount of judgment they could obtain from the consumer.

WHAT IF I’M BEING CONTACTED BUT MY FRIEND/FAMILY MEMBERS ACTUALLY OWES THE DEBT?

  • Jared Hartman, Esq.
  • Posted on February 2, 2014
  Debt collectors often contact friends and/or family members of the person who actually owes the debt, and this is called "third party contact". Third party contacting is usually done in an effort to obtain contact information for the person who actually owes the debt (called the debtor), to use the friend/family member to get the debtor to pay the debt, or even sometimes in an effort to the get the friend/family member to pay the debt themselves! Both you, as the third-party, and the debtor may be able to sue the debt collector depending on what the debt collector states in the phone call. If the debt collector informs you as the third party that the person they are trying to contact owes a debt, that is a violation and the debtor can sue for monetary relief and a court order to stop the calls. If the debt collector is contacting you as the third party in an effort to obtain contact information for the debtor, and if we can prove that they already have that person’s contact information, that is a violation of your rights as a third-party and you can sue for monetary relief and a court order to stop the calls. If the debt collector calls you as the third party more than once, or if they try to urge you to notify the debtor to call them back, or if they lie to you in any manner, then that is a violation of your rights as the third party and you can sue for monetary relief and a court order to stop the calls. Bottom line, the ONLY legal reason for a debt collector contacting you as the third party is to call you ONE TIME to request contact information for the debtor, but they have to walk a very fine line because they also cannot inform you that the debtor owes a debt. If you have been contacted by a debt collector looking for a friend or family member, you should contact us immediately for a free and confidential consultation to discuss whether your consumer rights have been violated.
2015 ARCHIVES

SOMEONE ELSE’S INFORMATION ON YOUR CONSUMER CREDIT REPORT?

  • Jared Hartman, Esq.
  • Posted on December 1, 2015
  Have you discovered that someone else’s information has been posted on your consumer credit report? It is frighteningly common for the consumer credit reporting agencies (Experian, Equifax, and Trans Union) to mix someone else’s negative credit accounts with another person. It should go without saying that your consumer credit report should be 100% accurate with respect to only your own credit accounts. One common exception to this occurs with married couples who may be jointly liable for each other’s lines of credit, or may be listed as authorized users on each other’s individual accounts. However, when a consumer credit reporting agency is mixing the information for two people with the same name—whether related or not—then the law has been violated. In fact, this is one of the primary reasons that the U.S. Legislature enacted the Federal Fair Credit Reporting Act in the first place. The FCRA enforces this principle when it requires the consumer credit reporting agencies to follow reasonable procedures to ensure maximum possible accuracy of the information “concerning the individual about whom the report relates.” See 15 U.S.C. 1681e(b). This Section requires the agencies to have in place reasonable procedures to ensure that these violations do not occur, and they must follow those procedures. Courts have ruled that it may very likely be unreasonable for the credit reporting agencies to only match names without using any other identifying factors such as date of birth, social security number, address, or the like. Typically, whether an agencies procedures are reasonable, however, is a question for the jury to decide under the circumstances. It is also unreasonable for a credit reporting agency to maintain two files under one social security number, since it is mandatory that each SSN belong to only one person. Please click HERE to read a complaint that has recently been filed by Semnar & Hartman, LLP against Experian that alleges this very violation—alleging that Experian merged the derogatory accounts belonging to the young consumer’s estranged father into the consumer’s file, which caused him to be outrightly denied the opportunity to apply for an auto loan that he desperately needed. If you or a loved one have been contacted by this debt collector, please contact us immediately for a free and confidential consultation to review your rights.

THREATENED WITH A LAWSUIT BY FIRST NATIONAL COLLECTION BUREAU, INC.?

  • Jared Hartman, Esq.
  • Posted on November 14, 2015
  Semnar & Hartman, LLP have recently filed a lawsuit against a debt collector out of the McCarron, Nevada called First National Collection Bureau, Inc. for threatening an improper lawsuit against a consumer whose debt had been discharged in Chapter 7 Bankruptcy in 2006. The FDCPA prohibits a debt collector from misrepresenting the legal status of a debt and also prohibits a debt collector from threatening to take an action that cannot be legally taken. Because the credit card debt had been discharged in Bankruptcy in 2006, the debt had been completely extinguished and any legal ability for the client to be sued on the debt has also been expired by the statute of limitations due to the age of the default on the debt. When First National sent its collection letter repeatedly claiming to be offering to settle the debt and the settlement offer would be revoked if it were not accepted on their terms, then First National implicitly threatened to the client that she could be sued on the debt. Moreover, due to the Bankruptcy discharge, the debt no longer exists anyway. Consequently, a lawsuit has been recently filed against First National to remedy this abusive conduct. A copy of this lawsuit can be read by clicking HERE. If you or a loved one have been contacted by this debt collector, please contact us immediately for a free and confidential consultation to review your rights.

BEEN HARASSED BY ORACLE FINANCIAL GROUP OR UNITED PORTFOLIO SERVICING?

  • Jared Hartman, Esq.
  • Posted on September 21, 2015
  The law firm of Semnar & Hartman LLP has recently filed a lawsuit against these companies for some very egregious violations of the Rosenthal Act and the Federal FDCPA. The client was being contacted on a very old credit card debt that is barred from judgment by statute of limitations. When a debt collector is prohibited from obtaining a judgment by the applicable statute of limitations, the FDCPA requires that the collector not threaten a lawsuit, file a lawsuit, and in many instances cannot even imply that a lawsuit is possible or being considered. The reason is because the debtor is not likely to know that the statute of limitations has expired, and is therefore likely to be misled into paying the debt out of duress just to avoid a lawsuit that in actuality could never have been sought. The offending companies in this case left multiple voicemails on the cell phone for his client, his mother, and his mother in law claiming that a lawsuit was being filed and process servers were looking for the client. However, all of this was false. A lawsuit had never been filed against the client, and due to the statute of limitations expiring the companies violated the Rosenthal Act and the FDCPA by even claiming one was being considered. Additionally, the offending companies left voicemails for the client, his mother, and mother in law threatening that the lawsuit involved allegations of fraud and theft of services. Again, these threats were false and violated the Rosenthal Act and FDCPA. A breach of an agreement to pay a credit card (or any other loan) is not a criminal action unless it can be proven beyond a reasonable doubt that the debtor entered into the loan without any intention of ever paying it back. Simply failing to pay the debt is not a criminal action and a debt collector claiming it is a criminal action has violated the law. A copy of this Complaint can be read by clicking HERE. If you or a loved one have been subjected to similar such violations, do not take them lightly. Consumer rights are in play to protect the gullible and to prevent debt collectors and creditors from taking unfair advantage of the consumer. Please do not hesitate to contact us for a free and confidential consultation.

MORTGAGE LOAN BEING SERVICED BY ROUNDPOINT MORTGAGE SERVICING CORPORATION?

  • Jared Hartman, Esq.
  • Posted on August 24, 2015
  The law firm of Semnar & Hartman, LLP are presently investigating possible consumer rights violations being committed by RoundPoint Mortgage Servicing Corporation in connection with its efforts to collect monthly mortgage payments from California home owners. Such possible violations may include the following:
  1. Force-placing into Escrow amounts for anticipated taxes in the future even though the homeowner has a waiver of such items to be paid through Escrow;
  2. Failing to send monthly collection statements informing the homeowner of exactly how much RoundPoint is collecting from the homeowner;
  3. Sending monthly collection statements that indicate RoundPoint is collecting Escrow items for “taxes and insurance” when in reality they are only attempting to collect either taxes or insurance, but not both;
  4. Furnishing inaccurate information to the consumer credit reporting agencies by claiming a homeowner is in default on the mortgage payments when in reality the homeowner has always paid his or her monthly obligation;
  5. Threatening foreclosure if the homeowner does not call to make payment arrangements for amounts that the homeowner does not actually owe.
If you or a loved one have a home mortgage loan being serviced by RoundPoint, please do not hesitate to call us for a free and confidential consultation to discuss your rights as a homeowner and whether those rights may have been violated.

NEW TCPA RULES ISSUED BY FCC – HUGE VICTORIES FOR CONSUMERS

  • Jared Hartman, Esq.
  • Posted on July 22, 2015
  Commissioner Jessica Rosenworcel: "I detest robo-calls. We receive thousands of complaints a month about robo-calls, and our friends across town at the Federal Trade Commission receive tens of thousands more." "We applaud the FCC for upholding the essential protections in the Telephone Consumer Protection Act, a key consumer law," said National Consumer Law Center attorney Margot Saunders. "The industry petitions [requests from companies to protect their interests over consumers'] would have exposed consumers to a tsunami of unwanted robocalls and texts to their cell phones." "We applaud the FCC for holding the line to keep the plague of unwanted robocalls from becoming even worse," added Susan Grant, director of Consumer Protection and Privacy at Consumer Federation of America. The TCPA (Telephone Consumer Protection Act, at 47 U.S.C. 227) is a statute that prohibits, among other things, unwanted telephone calls with automatic telephone dialing systems, robot messages, and/or pre-recorded voice messages without consent and without emergency purposes, as well as junk faxes and telemarketers calling people who are registered on the "Do Not Call List". See our page titled "Phone Calls (TCPA Video)" for more detailed information on the statute. By statute, the FCC has authority to issue rules that interpret and apply the statute itself. The courts are bound to follow the FCC rulings as if they were the statute themselves. Over the years, there has been much heavily-contested litigation over many of the grey areas within the statute and FCC rulings themselves. However, on July 10, 2015, the FCC released its newest ruling and order that clarifies a lot of these grey areas. Many of the rulings are very beneficial to consumers who wish to put a stop to the unwanted harassment that companies engage in. Consent must be provided by the current subscriber or regular user of the phone number: "The new user of a reassigned phone number shouldn't have to put up with being abused by callers for the old user of the phone number," said FCC Chairman Tom Wheeler. One of the hotly-contested issues over the years has occurred when a company intends to call one person who had previously given consent to the company for TCPA purposes, but the company inadvertently calls the wrong person who has since received the first person’s phone number. Courts throughout the country have issued differing rulings, with some courts ruling that the company has no liability when it intends to call a person who had previously given consent while other courts have ruled that the person who is the current subscriber is the only person who can consent to be called upon the phone number at issue. The FCC has issued its ruling in favor of the consumers on this issue. One of the hotly-contested issues over the years has occurred when a company intends to call one person who had previously given consent to the company for TCPA purposes, but the company inadvertently calls the wrong person who has since received the first person’s phone number. Courts throughout the country have issued differing rulings, with some courts ruling that the company has no liability when it intends to call a person who had previously given consent while other courts have ruled that the person who is the current subscriber is the only person who can consent to be called upon the phone number at issue. The FCC has issued its ruling in favor of the consumers on this issue. This requirement of consent also applies to the person who is the primary user of the phone number but is not the subscriber on paper. For instance, if the wife regularly uses the phone number that was issued in her husband’s name, then the consent must have been given by the wife as the regular user of the number. Prior express consent can be revoked via any reasonable means: Another hotly-contested issue over the years is whether a consumer can revoke consent that had previously been given. Again, courts throughout the country have been divided—with some courts ruling that consent cannot be revoked after once having been given, other courts ruling that consent must be revoked in writing, while other courts ruling that consent can be revoked verbally at any time. The FCC has once again ruled in favor of consumers. A consumer can revoke consent for TCPA purposes at any time and via any method that is reasonable. That means simply telling the company one time over the phone to stop calling is valid and effective to trigger TCPA liability on every call thereafter. But be careful: as soon as the company asks if they can call you back on your current number and you agree, then consent might have just been renewed. It is best to insist that all communications be in writing, and that any letter from you that requests all calls to cease be delivered via fax or certified mail for proof of delivery, so that there is never any ambiguity or question as to whether consent was revoked. Additionally, it is important to note that the FCC has denied one company’s request that it allow the company’s to control how consent can be revoked. It is clear that no company, for TCPA purposes, can dictate how revocation can be lodged by the consumer—even if the contract that gave rise to a debt is agreed to by the consumer and that contract gives direction on exactly how the company will accept revocation, then TCPA liability still exists even if the consumer gives revocation in a manner different than how the company has dictated in its contract. Additionally, it is important to note that the FCC has denied one company’s request that it allow the company’s to control how consent can be revoked. It is clear that no company, for TCPA purposes, can dictate how revocation can be lodged by the consumer—even if the contract that gave rise to a debt is agreed to by the consumer and that contract gives direction on exactly how the company will accept revocation, then TCPA liability still exists even if the consumer gives revocation in a manner different than how the company has dictated in its contract. An automatic telephone dialing system is one that has the capacity to act as an auto-dialer, even if not used for that purpose: The TCPA prohibits calls from being placed with an “automatic telephone dialing system” (also known as an ATDS) to a cell phone, when there is no consent or emergency purpose. Note that these types of calls do not trigger liability when the call is placed to a landline….only calls to a landline with robot messages and/or pre-recorded voice messages trigger TCPA liability. There has been heavy litigation over the years as to what triggers liability under this prong of the TCPA. Many companies use machines that have the capability to act as an ATDS, but claim that an agent manually-dialed the number at the time of calling the consumer. It is now unequivocally clear that the FCC has ruled that such calls are still in violation of the TCPA. An ATDS is now unquestionably defined as dialing equipment that generally has the capacity to store or produce and then dial random or sequential numbers even if it is not presently used for that purpose. Also a "predictive dialer" meets the definition of an ATDS, as it is equipment with the capacity to store or produce and then dial random or sequential numbers, even though the dialer predicts when a sales agent will be available to be subsequently dialed by the equipment to then connect with the consumer who answered the initial call by the dialer. As it always has, the TCPA provides victims of such unwanted calls a minimum of $500.00 per call as strict liability, and possibly $1,500.00 per call for willful violations. If you or a loved one are fed up with the abusive calls lodged by companies on a daily basis, do not hesitate to contact us for a free, confidential consultation to discuss your rights.

ATTENTION MILITARY MEMBERS! HAVE YOU BEEN DISCRIMINATED AGAINST FOR MILITARY STATUS OR MILITARY OBLIGATIONS?

  • Jared Hartman, Esq.
  • Posted on May 11th, 2015
  Both federal and California laws protect military members from discrimination. The federal law is called Uniformed Services Employment and Reemployment Rights Act (USERA) and can be found at 38 U.S.C. §§ 4301-4333. The California law is called the California Military and Veterans’ Code and can be found at Calif. Military and Veteran’s Code § 394. Among other things, these statutes prohibit discrimination against military members by employers for their status as military or for performing their obligations as military members. Discrimination by employers can occur by way of refusing to hire the military member; taking adverse action such as discipline, demotion, or refusal to promote, or denial of ancillary benefits; termination of employment; or failing to re-employ upon return from deployment. In order to obtain civil relief, the military member need only show that the military status or military obligations served as a substantial motivating factor in the employer’s decision, and need not show that military was the sole motivating factor. The employer can only then escape liability if it proves that the adverse action would have been taken even if the military status or military obligations did not exist. The law firm of Semnar & Hartman, LLP recently filed a lawsuit against Enviro-Master Corporation for such allegations of discrimination. The lawsuit alleges that the owner of Enviro-Master Corp’s San Bernardino branch terminated the military member’s employment by sending an email that specifically cited the member’s military obligations as the reason for the termination. The complaint can be viewed by clicking HERE.

NATIONSTAR MORTGAGE, LLC ATTEMPTING TO COLLECT MONEY THAT IS NOT OWED?

  • Jared Hartman, Esq.
  • Posted on May 2nd, 2015
  Have you or a loved on been subjected to debt collection efforts by Nationstar Mortgage, LLC upon a mortgage debt that is not owed? The firm of Semnar & Hartman, LLP has recently filed suit against Nationstar Mortgage, LLC and Bank of America, N.A. alleging that Bank of America retained the services of Nationstar Mortgage, LLC to collect upon a defaulted mortgage that was settled by way of short-sale. After foreclosure proceedings had been initiated, but before foreclosure occurred, the consumers completed a short-sale of the home. Bank of America signed documents that specifically states the outstanding debt had been settled and that the consumers were released from any further obligation for owing the difference. Unfortunately, however, approximately one year after the short-sale was completed, Nationstar Mortgage, LLC began sending letters to the consumers attempting to collect upon the amount that had been forgiven. The consumers informed Nationstar that the debt had been settled by way of short-sale, and Nationstar simply told them to ignore the letters. However, Nationstar continued to send collection letters and even began to threaten foreclosure upon the same home that the consumers had already sold. Even worse for the consumers, Nationstar had also began reporting upon their credit reports the false information that they were still in default on the loan and the loan had been charged off as a bad debt. This false reporting led to the consumers being denied new lines of credit and has prevented them from moving on with their lives after such a difficult period. The Complaint has been filed in the Central District of California and can be viewed by clicking here. If you or a loved one is being harassed by Nationstar for a debt that is not owed, or if being harassed even upon a debt that is legitimately owed, please do not hesitate to contact us for a free and confidential consultation as to whether your rights have been violated.
Related Tags: debt collection harassment, rosenthal fair debt collection, san diego debt harassment attorney, california debt harassment attorney, orange county debt harassment attorney, riverside debt harassment attorney​, FDCPA, FCRA, Rosenthal Act, Nationstar Mortgage harassment, Bank of America harassment, Nationstar debt collection harassment, Bank of America debt collection harassment

HARASSING PHONE CALLS BY WELLS FARGO MORTGAGE

  • Jared Hartman, Esq.
  • Posted on April 28th, 2015
  Semnar & Hartman, LLP is currently investigating claims against Wells Fargo Mortgage regarding harassing telephone calls in connection with their collection of mortgage payments. It is believe that Wells Fargo places harassing robo-calls, autodialed calls, and/or calls with pre-recorded and/or artificial voice messages to consumers who have not previously consented to receive such calls for purposes of collecting upon mortgage payments. In most instances, robocalls and robo text messages violate the Telephone Consumer Protection Act (TCPA), and generally each violations allows for $500 to $1,500 per violation. If you or a loved one has received such calls and/or text messages from Wells Fargo Mortgage, we invite you to please contact us for a free and confidential consultation. TCPA Protections Against Unconsented Robocalls, Autodialed calls, and text messages The TCPA became law in 1991, putting restrictions on automated calls, autodialed calls, calls with pre-recorded and/or artificial voice messages, and text messages, whether sent for debt collection or telemarketing purposes. In most circumstances, an entity must have a person’s prior express consent in order to make automated or prerecorded calls or text messages. See our “Phone calls” webpage or blog postings regarding TCPA violations for more detailed information. If you or a loved one have received robocalls or text messages from Wells Fargo Mortgage, we encourage you to fill out our contact form so that we can evaluate your rights. We have experience handling alleged TCPA violations and are committed to providing you answers while holding institutions like Wells Fargo Mortgage accountable. We look forward to speaking with you.

RECEIVING CALLS FROM TD AUTO FINANCE WITHOUT CONSENT?

  • Jared Hartman, Esq.
  • Posted on April 21st, 2015
  Semnar & Hartman, LLP is currently investigating claims against TD Auto Finance, the automobile financial services provider, for placing robo-calls, autodialed calls, and/or calls with pre-recorded and/or artificial voice messages to consumers who have not previously consented to receive such calls, as well as sending text messages without consent. In most instances, robocalls and robo text messages violate the Telephone Consumer Protection Act (TCPA), and generally each violations allows for $500 to $1,500 per violation. If you or a loved one has received such calls and/or text messages from TD Auto Finance, we invite you to please contact us for a free and confidential consultation. TCPA Protections Against Unconsented Robocalls, Autodialed calls, and text messages The TCPA became law in 1991, putting restrictions on automated calls, autodialed calls, calls with pre-recorded and/or artificial voice messages, and text messages, whether sent for debt collection or telemarketing purposes. In most circumstances, an entity must have a person’s prior express consent in order to make automated or prerecorded calls or text messages. See our “Phone calls” webpage or blog postings regarding TCPA violations for more detailed information. If you or a loved one have received robocalls or text messages from TD Auto Finance, we encourage you to fill out our contact form so that we can evaluate your rights. We have experience handling alleged TCPA violations and are committed to providing you answers while holding institutions like TD Auto Finance accountable. We look forward to speaking with you.

MEDICAL DEBT COLLECTIONS TRYING TO COLLECT ON A BILL SUBJECT TO WORKER’S COMPENSATION

  • Jared Hartman, Esq.
  • Posted on April 10th, 2015
  Suffering a significant injury while on the job can be very traumatizing and life altering. Not being able to perform the job that one was once able to perform can cause a serious blow to one’s emotional stability and self-confidence, and the lack of ability to provide financial stability to one’s family is severely unfortunate. Insult to such injury is added when medical debt collectors fail to submit their billing liens to the workers’ compensation board and persist in attempting to collect from the injured employee directly. Thankfully, the law provides protections against such unfair debt collection tactics. California Labor Code Sections 4600, 5300, 5304, and 5955 provide the basis that the worker’s compensation board has exclusive jurisdiction to handle medical debts that are the subject of a workers’ compensation claim. In order for the medical provider and/or debt collector to seek reimbursement for such services, they must submit a lien to the workers’ compensation board so that the board can determine the appropriate amount of pay for the employer and/or employer’s insurance company to provide. If the medical provider and/or debt collector is not satisfied with the board’s ruling, then their sole remedy is to file a petition for reconsideration pursuant to California Labor Code § 5900 and then appellate review pursuant to California Labor Code § 5950. However, California Labor Code § 3751(b) provides that medical providers shall not collect money directly from their patients for services to cure or relieve the effect of the injury for which a claim form, pursuant to Cal. Lab. Code § 5401, was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the patient. Any medical provider who violates Cal. Lab. Code § 3751(b) shall be liable for three times the amount unlawfully collected, plus reasonable attorney’s fees and costs. Semnar & Hartman, LLP regularly ties such unlawful debt collection tactics into a claim for either or both of the Federal or Rosenthal Fair Debt Collection Practices Acts, since those laws prohibit any attempt to collect an unauthorized amount in connection with consumer debts. If you or a loved one are proceeding through a workers’ compensation board claim, but are still receiving debt collection bills and/or phone calls, please do not hesitate to contact us as soon as possible for a free, confidential consultation about your rights.
2016 ARCHIVES

OVERSHADOWING VIOLATIONS CLASS CERTIFICATION PRELIMINARILY APPROVED

  • Jared Hartman, Esq.
  • Posted on December 13, 2016
  Our law firm recently received preliminary approval for class certification in the case of Capps. v. Law Office of Peter Singer, et al. The opinion can be read by clicking HERE. The case was filed October 26, 2015, alleging that the Law Office of Peter Singer sent debt collection letters to consumers with language that overshadows and contradicts mandatory disclosures that debt collectors are required to provide to consumers to properly advise them of their rights under the Federal Fair Debt Collection Practices Act (FDCPA). In particular, 15 U.S.C. 1692g requires third party debt collectors, even law firms that regularly engage in debt collection on behalf of another, must include a notice in their first collection letter that the consumer has 30 days to either dispute the debt, a portion of the debt, or request validation of the debt. If the consumer does provide in writing either a dispute or a request for validation, the debt collector must cease any further efforts to collect the debt until validation is delivered to the consumer. Typically, the validation must involve delivering to the consumer the original creditor’s name and address and/or a copy of a judgment. This is important, because often-times debts are sold and re-sold between different agencies, and the consumer may not know what the debt pertains to if they do not recognize the current creditor or current collection agency. Providing to the consumer the original creditor’s name and address, at a minimum, should help the consumer to determine whether the debt is validly owed by the consumer, if the debt was actually incurred by someone else and the collector is contacting the wrong person, or if the debt had been paid off in the past and there is a mistake in alleging the debt is still owed. Providing the consumer 30 days to send such a dispute or request for validation provides the consumer with sufficient time to consider his or her choices in how to proceed, and also provides the consumer sufficient time to gather and deliver documents to the debt collector to support a dispute. Courts have consistently held that any other language in the first collection letter that weakens or confuses this mandatory disclosure amounts to an “overshadowing” violation of the FDCPA. Plaintiff’s claims in this case are based on the collection letters containing language that attempted to limit the consumers’ rights to take 30 days by urging consumers to pay the debt within 7 days. In particular, the letters claimed that the Law Office of Peter Singer would be entitled to sue the consumers after 7 days if they do not pay the debt or call the debt collector to make payment arrangements. Even though the letters also contained the mandatory 30 day dispute disclosure discussed above, the fact that the letters also contained a threat of lawsuit after merely 7 days of non-payment weakened and overshadowed the consumers’ absolute right to a 30 day dispute period. On November 21, 2016, the Southern District of California granted the Plaintiff’s motion for preliminary approval of class settlement. The class settlement will entitle 170 members of the class to receive $66.70 each out of the class fund of $11,606.16. Class members can opt out in order to pursue their own claim on an individual basis. A final fairness hearing will be held March 13, 2017 in order for the Court to determine whether the final payments should be distributed to the class members who have not opted out, and in order to finally dispose of the class action if the Court determines that finalizing the class settlement is fair and meets all legal requirements of Rule 23. A copy of the motion for class preliminary approval can also be found by clicking HERE. As always, if you or a loved one are being contacted by a debt collector, you should not hesitate to contact us for a free and confidential consultation to determine whether your rights have been violated.

BEEN VICTIMIZED BY A DEFAULT JUDGMENT BASED ON FRAUDULENT PROOF OF SERVICE?

  • Jared Hartman, Esq.
  • Posted on November 28, 2016
  Sadly, we have seen numerous incidents of third party debt collectors obtaining default judgment against a consumer based on a proof of service that the consumer claims is fraudulent. This sometimes occurs when the process server simply claimed that the person was served personally, even though we have been able to obtain proof that the consumer did not reside at the address claimed to have been the place for service on the date claimed. More common, however, is that the process server had claimed that substitute service occurred by serving an unidentified JOHN DOE/JANE DOE, even though we are able to obtain proof that no-one other than the consumer resided at the residence on the date alleged, or that the consumer had actually moved from that residence before the alleged service occurred. We have also seen this occur when the process server claimed to have executed substitute service, but failed to show evidence via affidavit of reasonable diligence to first attempt personal service, which also renders the service invalid and consequently renders the default invalid. In any event, however it may occur, many consumers who have reached out to us only first discovered the default judgment after having received notice from his/her employer that a wage garnishment was about to occur by the debt collector serving a writ of execution upon the judgment. Sometimes, a levy is also placed by the debt collector upon the consumer’s bank accounts, which freezes the finances contained therein and allows the debt collector to withdraw some or all of those finances. Clearly, this can be devastating because it can have a direct impact on the consumer’s ability to budget for living expenses and other necessary life expenses. If this has happened to you or someone you love, then you must not delay in seeking counsel’s representation. California law requires that the consumer seek to set aside the entry of default and default judgment within six months of first discovering they have occurred. We have unfortunately seen people who have waited, thinking it would just magically go away, or that they have contacted the debt collector directly in an attempt to obtain their agreement to set aside after explaining the service was not legit and only to then be taken advantage of by the debt collector. We have also seen people who have filed hardship paperwork with the court without first contesting the default and without contesting the proof of service, which can be argued as an implicit admission that the service was valid. These are not good options….the best option is to promptly call a consumer attorney to discuss the proper course of seeking to set aside the default and default judgment. There are also very technical requirements that must be met in seeking to do this, and a failure to meet every single technical requirement can result in the motion to set aside being denied with prejudice, which means the consumer has now forever lost any ability to ever seek to set them aside. Again, the best option is to promptly consult a consumer attorney to discuss the proper course on how to pursue the set aside based upon the consumer’s individual circumstances. One example motion to set aside can be found by clicking HERE. If we are successful in having the entry of default and default judgment set aside, then it is possible for us to file a counter-suit against the debt collector (and possibly the process server) for engaging in unfair and oppressive conduct and misrepresentations. Many federal courts have ruled that it is not possible to file a Fair Debt Collection Practices Act before obtaining the set aside, because such a lawsuit operates as an indirect appeal of the court’s entry of default without actually having taken an appeal through proper channels. So, the best strategy is to first obtain a court ruling setting aside the entry of default/default judgment and then review the case for a counter-suit. If you or anyone you know is in such a circumstance, please do not hesitate to contact us promptly for a free and confidential consultation to review your particular circumstances.

SCRIPPS MEMORIAL HOSPITAL VIOLATES WORKER’S COMPENSATION LAWS

  • Jared Hartman, Esq.
  • Posted on November 8, 2016
  Getting hurt on the job can be a very traumatic event. Your life can be changed for the worse—not only are you physically hurt, but you risk not being able to perform your job duties any longer and you possibly risk losing your job completely. Depending on the injury, you may not be able to work in your industry at all any more. The lack of ability to provide for yourself and your family leads to emotional issues such as depression, anxiety, and feelings of self-doubt and loss of self-worth. The loss of income possibly results in losing your home to foreclosure due to an inability to pay your mortgage, which could also in turn result in strife within the marriage. All of your dreams and plans for the future are crushed. Now add to all of these problems the fact that the medical provider has been relentlessly attempting to collect money from you for the medical services that were provided as a direct result of the workplace injury, even though you are struggling financially due to your loss of normal stream of income. Your worker’s compensation attorney sends the medical provider a letter informing them that their exclusive remedy is to file a claim for services with the worker’s compensation board and participate in that process. Your attorney also informs the medical provider that they are not to attempt to contact you directly anymore, because California Labor Code 3751(b) specifically prohibits them from collecting the bill for services from you directly. Their responses to your attorney’s letter, however, is to retain an outside collection agency who then proceeds to continue collection efforts from you personally. They call you repeatedly at all hours of the day; they send you letters with ominous threatening language. They claim the debt is increasing because of interest and costs and fees, and they threaten that the debt is going to be a negative mark on your consumer credit report. All of this adds to your stress, anxiety, and depression because you thought you were protected and you thought they were going to faithfully comply with your attorney’s instructions to file a claim with the worker’s compensation board. You lose sleep; you lose faith in the worker’s compensation process; you lose faith and trust in your attorney; you worry about how these bills are going to get paid; you worry about how you will be able to move forward with negative items on your credit report that you are not supposed to be responsible for…. Thankfully, you can go after these unscrupulous companies who are so quick to degrade you and ignore your rights!! California Labor Code Sections 4600, 5300, 5304, and 5955 provide the basis that the worker’s compensation board has exclusive jurisdiction to handle payment of medical debts that are the subject of a workers’ compensation claim. In order for the medical provider and/or debt collector to seek reimbursement for their medical services, they must submit a claim to the workers’ compensation board so that the board can determine the appropriate amount of pay for the employer and/or employer’s insurance company to provide to the medical providers. If the medical provider and/or debt collector is not satisfied with the board’s ruling, then their sole remedy is to file a petition for reconsideration pursuant to California Labor Code § 5900 and then appellate review pursuant to California Labor Code § 5950. However, California Labor Code § 3751(b) provides that medical providers shall not collect money directly from the employee for services to cure or relieve the effect of the injury for which a claim form, pursuant to Cal. Lab. Code § 5401, was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the patient. Any medical provider who violates Cal. Lab. Code § 3751(b) shall be liable for three times the amount unlawfully collected, plus reasonable attorney’s fees and costs. Semnar & Hartman, LLP regularly ties such unlawful debt collection tactics into a claim for either or both of the Federal or Rosenthal Fair Debt Collection Practices Acts, since those laws prohibit any attempt to collect an unauthorized amount in connection with consumer debts. Click HERE to review a complaint recently filed against Scripps Memorial Hospital and Progressive Management Systems for contacting the employee directly several times in complete disregard of a letter sent by the employee’s worker’s compensation attorney. If you or a loved one are proceeding through a workers’ compensation board claim, but are still receiving debt collection bills and/or phone calls, please do not hesitate to contact us as soon as possible for a free, confidential consultation about your rights.

BEING HARASSED BY CITY TITLE LOAN, LLC?

  • Jared Hartman, Esq.
  • Posted on November 1, 2016
  Our law firm is investigating suspected internal policies of telephone harassment by City Title Loan, LLC and are looking for anyone who has received collection calls or letters by them for free and confidential consultations. A lawsuit filed earlier this year alleges that City Title Loan employees used automatic dialing equipment to place a large volume of calls (in excess of 90 calls) to one of their customers over a period of just a few weeks in violation of the Telephone Consumer Protection Act (TCPA). Even though the customer repeatedly asked that the calls cease and asked for routine billing statements as proof of exactly what is owed (which are disclosures that federal law makes mandatory), the business not only refused to comply but also belittled him when threatening that the calls would continue. The company also proceeded to call the customer’s elderly mother who is living with Parkinson's disease and uttered threats of collection against her (even though she was only listed as a reference and not a co-obligor), and also threatened to the mother that they were looking to arrest the customer if he did not make a payment (which is false because failing to make a payment is only a breach of contract and is not subject to criminal charges). A copy of the complaint can be read by clicking HERE Please rest assured, you do have rights! If you are facing collection efforts by City Title Loan (or any other title loan lender, payday lender, bank, creditor, or debt collector), please do not hesitate to contact us a free and confidential consultation to discuss whether your rights have been violated.

WELLS FARGO RECEIVES MASSIVE $190 MILL. FINE FOR FRAUDULENTLY OPENING 1.5 MILL. FAKE ACCOUNTS

  • Jared Hartman, Esq.
  • Posted on September 19, 2016
  Just recently Wells Fargo agreed to a settlement with government agencies (The office of the Comptroller of Currency, the Consumer Financial Protection Bureau, and the Los Angeles City Attorney) to pay a civil penalty of $190 million over its disturbing history of opening fake accounts in customers’ names without the customers’ consent or authorization. Government investigations have revealed that Wells Fargo pushed its branches to meet high sales quotas, and that a rampant scheme amongst several managers and employees resulted in accounts and credit cards being opened in customers’ names in order for the branches to meet the high quotas. A Wall Street Journal article that describes this history of this disturbing issue can be read by clicking HERE . In May 2015, the Los Angeles City Attorney filed a lawsuit suit against Wells Fargo, alleging the bank pressured its employees to commit fraudulent acts, including opening accounts for people that don’t exist. The City Attorney filed its lawsuit under the California Unfair Business Practices Act and Unfair Competition Laws. The CFPB and the Office of the Comptroller of the Currency also opened investigations and found that bank employees illegally transferred money from legitimate accounts into unauthorized ones opened for customers without their approval. More information about the investigation can be read in this CNN Money article, by clicking HERE Per the Press Release issued by the CFPB:
“Spurred by sales targets and compensation incentives, employees boosted sales figures by covertly opening accounts and funding them by transferring funds from consumers’ authorized accounts without their knowledge or consent, often racking up fees or other charges. According to the bank’s own analysis, employees opened more than two million deposit and credit card accounts that may not have been authorized by consumers.”
“Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses,’ said CFPB Director Richard Cordray. “Because of the severity of these violations, Wells Fargo is paying the largest penalty the CFPB has ever imposed. Today’s action should serve notice to the entire industry that financial incentive programs, if not monitored carefully, carry serious risks that can have serious legal consequences.”
A copy of the CFPB consent order can be read HERE Wells Fargo now claims that it will eliminate all sales goals for credit cards, checking accounts, and other retail products starting January 1, 2016 as a measure of addressing these concerns. Additionally, approximately 5,300 employees have been fired over this rampant scheme of fraud. A Los Angeles Times article on Wells Fargo’s recent response can be read HERE. However, despite the fine and employee terminations and promises of eliminating the aggressive sales tactics that resulted in the widespread scheme of fraud, some people are still outraged that no criminal proceedings are on the forefront. Newsman Ben Swann recently conducted a piece on this issue on his show Reality Check. Watch the video below: We at Semnar & Hartman, LLP are experienced in handling these very issues on behalf of consumers. When an account is opened in a customers’ name without their consent or authorization, it is without a doubt an illegal account. And when that illegal account accrues fees and costs, but when those fees/costs are not paid because the customer is not aware of the account having been opened, there will inevitably be negative credit reporting and debt collection efforts. Anyone who has been a victim of this scam deserves justice. We can help. If you or a loved one have had this unfortunate experience, please do not hesitate to call us for a free and confidential consultation. Please note, nothing herein is to be construed as legal advice, and is instead hyperbolic opinions on an issue of public concern. Proper legal advice can only be given after a full, and confidential, consultation takes place after a review of all of the client’s circumstances.

HARD VS. SOFT INQUIRIES ON CONSUMER CREDIT REPORTS

  • Jared Hartman, Esq.
  • Posted on September 2, 2016
  Recently, we have had numerous calls by individuals who are confused as to the difference between “soft” inquiries vs. “hard” inquiries on their consumer credit reports. As a general rule, an inquiry is created when your credit report is accessed by a third party. Typically, these third parties are potential creditors—such as a credit card company, an auto dealership, or a home mortgage loan officer—but are also sometimes debt collection agencies, repossession agencies, insurance companies, and even potential employers. When consumers apply for a car loan, for example, the lender who is being asked to provide the loan will request a credit report for the consumer, which is generally obtained from either Experian, Equifax, or TransUnion. The fact that your credit information was used by these third parties will be noted on the consumer’s credit report, along with the date it was requested, the name of the third party that requested it, and the type of inquiry. Before we discuss specifics, it is important to note that inquiries remain on the consumer’s credit reports for two years. Soft inquiries will have less of an effect on the consumer’s credit score than hard ones. So what’s the difference? Hard inquiries are inquiries that can significantly affect a consumer’s credit score. They suggest to potential creditors that the consumer is actively trying to obtain credit, whether it be for a car, a credit card, a home mortgage loan, or simply a student loan. Numerous hard inquiries in a short period of time creates red flags, because it appears as if the consumer is trying to obtain more credit than s/he typically carries, and therefore might not be able to repay, which results in more of a negative impact upon the consumers’ credit score than individual hard inquiries spread out over a longer period of time. Soft inquiries, on the other hand, are generally not the result of a consumer who is shopping for credit. They can occur due to a consumer who requests their own credit report, or a lender who sends a consumer a preapproved credit offer. Such inquiries are not the result of active credit requests by the consumer, and therefore they do not generally result in the consumer’s credit score being negatively impacted. Other soft inquiries may include a request generated by a potential employer or an insurance company whose purpose is not to provide “credit” to the consumer.

How to Avoid Unintentional Hard Inquiries?

As indicated above, a consumer who reviews their credit report will: 1) not cause a hard inquiry on their own credit report, and 2) can see if others are making hard inquires on their credit report. It is important to know that generating an inquiry (hard or soft) without a “permissible purpose” is a violation of the Federal Fair Credit Reporting Act (“FCRA”). If you don’t know where to get a free credit report, or what to look for, Semnar & Hartman, LLP can help. We provide a free, no strings attached confidential consultation, where we sit down with any potential client and review their credit reports with them. If there is an error, or an inquiry that should not be there, we can help with disputing the information. If it is not removed with a simple dispute letter, then we may be able take pursue a lawsuit on your behalf, without any fee being charged to you. The FCRA provides for the consumer to obtain his/her attorneys’ fees from those who violate the Act. Moreover, they provide for statutory damages for the consumer for willful violations, even if the consumer has not suffered any actual harm. NOT LEGAL ADVICE – Please call us to schedule a Free Consultation, whereby you may receive legal advice tailored for your specific situation. So, feel free to come see us at 400 South Melrose Drive, Suite 209, Vista, California, or simply call us at (619) 500-4187 to schedule a phone consultation to ensure your credit report is free of any unwanted or unauthorized inquires. You can also obtain more information at our website: www.SanDiegoConsumerAttorneys.com

WELLS FARGO PENALIZED OVER UNLAWFUL STUDENT LOAN SERVICING PRACTICES

  • Jared Hartman, Esq.
  • Posted on August 28, 2016
  On August 22, 2016, the Consumer Financial Protection Bureau (“CFPB”) entered into a consent order with Wells Fargo over the manner in which Wells Fargo has been unlawfully handling its student loan servicing practices. The CFPB is a federal government agency that is tasked with investigating unlawful and unfair practices that creditors, banks, and debt collectors engage in with respect towards consumers. If violations are discovered and alleged, the CFPB has the power to issue a wide array of penalties that could include ordering a business to close its operations. Needless to say, when the CFPB sets its targets on a financial entity, the company should be in fear. On August 22, 2016, the Consumer Financial Protection Bureau (“CFPB”) entered into a consent order with Wells Fargo over the manner in which Wells Fargo has been unlawfully handling its student loan servicing practices. The CFPB is a federal government agency that is tasked with investigating unlawful and unfair practices that creditors, banks, and debt collectors engage in with respect towards consumers. If violations are discovered and alleged, the CFPB has the power to issue a wide array of penalties that could include ordering a business to close its operations. Needless to say, when the CFPB sets its targets on a financial entity, the company should be in fear. Before we discuss specifics, it is important to note that inquiries remain on the consumer’s credit reports for two years. Soft inquiries will have less of an effect on the consumer’s credit score than hard ones. So what’s the difference?
  • Processing payments in a way that maximized fees owed by consumers. Specifically, if a borrower made a payment that was not enough to cover the total amount due for all loans in an account, Wells Fargo divided that payment across the loans in a way that maximized late fees rather than satisfying payments for some of the loans. The bank failed to adequately disclose to consumers how it allocated payments across multiple loans, and that consumers have the ability to provide instructions for how to allocate payments to the loans in their account. As a result, consumers were unable to effectively manage their student loan accounts and minimize costs and fees.
  • Billing statements misrepresenting to consumers that paying less than the full amount due in a billing cycle would not satisfy any obligation on an account. In reality, for accounts with multiple loans, partial payments may satisfy at least one loan payment in an account. This misinformation could have deterred borrowers from making partial payments that would have satisfied at least one of the loans in their account, allowing them to avoid certain late fees or delinquency.
  • Illegally charging late fees even though timely payments had been made. Specifically, charging illegal late fees to payments made on the last day of their grace periods, and also charging illegal late fees to certain students who elected to pay their monthly amount due through multiple partial payments instead of one single payment.
  • Failing to update and correct inaccurate, negative information reported to credit reporting agencies about certain borrowers who have made partial payments or overpayments.
For these unlawful practices, Wells Fargo must pay at least $410,000.00 to consumers as compensation for illegal collection fees and late fees, and must allocate partial payments made by a borrower in a manner that satisfies the amount due for as many of the loans as possible, unless the borrower directs otherwise. Wells Fargo must also provide consumers with improved disclosures in billing statements, which must explain how the bank applies and allocates payments and how borrowers can direct payments to any of the loans in their student loan account. Wells Fargo must also remove any negative student loan information that has been inaccurately or incompletely provided to a consumer reporting agency. Wells Fargo must also pay a $3.6 million penalty to the CFPB’s Civil Penalty Fund. The CFPB’s consent order can be ready by clicking HERE. Clearly, this is not a light slap on the wrist that banks typically believe they should get, and this strong action by the CFPB should hopefully send a clear message to Wells and other financial institutions that they must take consumer rights very seriously and respect consumers as human beings instead of just another financial account on the books. If you or a loved one have concerns over any account being serviced or owned by Wells Fargo, please do not hesitate to contact our law firm for a free and confidential consultation to discuss your rights.

THE DEBT BUYING INDUSTRY

  • Jared Hartman, Esq.
  • Posted on August 20, 2016
  Dealing with a debt buyer can often be a frustrating and stressful experience. In general, debt buyers purchase old debts for a small percentage of how much is owed, and then aggressively pursue collection efforts upon the balance (or large percentage thereof) in order to maximize their ability to profit upon the debt as much as possible. Many debt buyers give their collection agents bonuses and commission based upon the amount they collect, which gives the collection agent incentive to put significant pressure upon the consumer to pay. While this industry is a legitimate and legal industry, the manner in which they operate can easily violate consumer protection laws through misrepresentations about how much is owed, whether interest and collection costs can rightfully be added onto the principle, misrepresentations about potential lawsuits, and in the most extreme cases verbal abuse and personal attacks upon the consumer. On June 5, 2016, John Oliver highlighted this industry and its flaws in his HBO show “Last Week Tonight with John Oliver”, which can be viewed here: his episode of Oliver’s show explains how easy it is for mistakes to be made, because the typical manner in which the debts are sold and bought is simply through Excel spreadsheets with just basic information about the consumer and how much is owed, which might not provide the debt buyer with sufficient information as to whether the debt is legally enforceable, is actually collectible, if prior payments had been made, and whether any legal stipulations had been included in the original loan agreement. Obviously, the debt buyer who purchases the debt for pennies on the dollar would want to engage in as little review of the account as possible, because the more effort that is put into review before collection means there is less profit to be made when compared to the effort being conducted. In short, quickly collecting as much as possible with as little effort as possible yields the most profitable return in favor of the debt buyer. Oliver also highlights some of the more extreme and disturbing examples of how the debt buyers in this industry can harm consumers through harassment and oppressive conduct. At 7:02 of his episode, Oliver plays recordings of voicemails left by debt collection agents uttering threats of violence, threats of harassment, and even suggesting that one consumer should commit suicide because she/he is a loser. At 7:46, an undercover video is shown where a debt collection agent laughs and jokes about how he likes to call consumers’ employers at the employers’ home in order to put pressure upon the consumer to pay the debt by harassing the consumers’ employer. Our law firm routinely pursues lawsuits for legal violations committed by debt buyers and debt collection agencies. If a debt collector is contacting you or a loved one, there is a very realistic possibility that they have already violated your rights. Do not hesitate to contact us for a free and confidential consultation to discuss your rights!

DEFAULT JUDGMENT AGAINST ASSISTED CREDIT SERVICES, INC. FOR $30,784.65 FOR MALICIOUS CREDIT REPORTING VIOLATION AND ATTEMPTING TO COLLECT A PAID DEBT

  • Jared Hartman, Esq.
  • Posted on July 20, 2016
  Default Judgment against Assisted Credit Services, Inc. for $30,784.65 for Malicious Credit Reporting Violation and Attempting to Collect a Paid Debt amount, even though the client’s insurance company had already paid more than half of the full debt and the client owed much less than what Assisted Credit was attempting to collect. Luckily, the client was smart enough to raise some red flags instead of just being tricked into blindly paying the full amount. Because the client did not trust Assisted Credit to be honest and ethical, she then paid the balance that she did owe directly to the medical provider. Assisted Credit then got upset and argued with her for depriving them of the ability to keep a portion for their collection "services" for not paying the debt through them. Thereafter, Assisted Credit furnished an update to the client’s credit report with the false information that she still owed a balance on the alleged debt, even despite their irrefutable knowledge that the client had already paid the balance on the debt directly to the medical provider. Therefore, it was believed that Assisted Credit submitted the derogatory credit reporting information maliciously with the intention of causing damage to the client’s credit score because she paid the balance to the medical provider directly. After being served with the lawsuit, Assisted Credit hired an attorney, but then for whatever reason fired that attorney and failed to participate in the lawsuit. Because a company or other organization cannot represent itself in court and must appear through an attorney (Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201–02 (1993), the Court graciously gave a deadline to Assisted Credit to retain a new attorney or face default judgment. When Assisted Credit failed to comply, the Court entered default of Assisted Credit. Recently, on July 19, 2016, the Court entered judgment in favor of Plaintiff in the amount of $30,784.65 for the violations alleged. The Court acknowledge that “Actual damages for credit reporting violations under either statute can include emotional distress and humiliation. See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1332–33 (9th Cir. 1995) (holding that “emotional distress, manifested by sleeplessness, nervousness, frustration, and mental anguish resulting from the incorrect information in her credit report” can be properly compensated). The Court agreed that the requested damages were appropriate for this client, because she “suffered frustration, anxiety, lack of focus on her livelihood, and feelings of hopelessness” and because her “consumer credit score took a hit after Assisted Credit reported the already-paid debt—a hit that Plaintiff acutely felt, as she had worked hard to rebuild her credit after a prior bankruptcy.” Further, the Court agreed that the credit reporting violations were willful: “evidence of Assisted Credit’s willful conduct in reporting a $120 debt when Assisted Credit affirmatively knew that the debt had been paid warrants punitive damages.” The Court’s well-reasoned and articulate ruling can be read by simply clicking HERE. This represents a nice opinion confirming that the law and the Courts will protect consumers being harassed by malicious debt collectors who flagrantly violate the law. If you or a loved one are being harassed, lied to, treated unfairly, or notice inaccurate information on your credit report, you should not feel alone and helpless. The law firm of Semnar & Hartman, LLP are experienced in protecting consumers and individuals in these situations. Consultations are always free and confidential, and can be done over the phone to reduce the burden on the client who may just need some questions answered. Do not hesitate to call and discuss your rights!
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BEEN HARASSED BY LVNV FUNDING, LLC OR ITS COLLECTION AGENTS?

  • Jared Hartman, Esq.
  • Posted on May 23, 2016
  LVNV Funding, LLC is a Las Vegas based "debt buyer"—an entity that regularly purchases defaulted (and often charged-off) debts from other entities, and then either attempts to collect the debt itself or retains an outside servicing agent to collect on their behalf. The circumstances under which LVNV operates renders them subject to mandatory compliance with the Federal Fair Debt Collection Practices Act. Recently, a jury in Baltimore returned a verdict and damages award of $38 million dollars on a class action alleging that LVNV Funding violated the laws by filing lawsuits, obtaining judgments, and garnishing consumers’ wages in Maryland even though it was not licensed to operate as a debt collector under Maryland law. The damages award also encompasses the profits that LVNV Funding received from the illicitly obtained money by investing the money in other avenues and reaping profits therefrom. A news story and interview of the plaintiffs’ lawyer can be found here: http://www.wbaltv.com/money/jury-hits-debt-collector-with-38m-judgment/39657226. Also, the law firm of Semnar & Hartman, LLP has teamed up with Mashiri Law Firm to file a proposed class action against LVNV Funding and its servicing debt collector J.C. Christensen & Associates, Inc. based on the deceptive manner the two have been attempting to collect debts from California consumers on debts that are so old they cannot be sued upon. The allegation is that LVNV and J.C. Christensen tells the consumers in their letters that the debt is so old they won’t be sued, but also offers three "settlement options" for the consumer to agree to pay the outstanding debt for less than the full balance. But the deception occurs because the debt collectors are not informing the consumers that, under California law, accepting any of the three "settlement options" creates a new contract with a new statute of limitations for them to sue the consumer upon if the consumer fails to pay the “settlement option” in full as agreed. Therefore, the consumer would actually be in a worse position than they would already be in if they agree to any of the "settlement options" but cannot actually pay the agreed amount in full. The complaint can be read by clicking HERE. If you or a loved one have been contacted by either LVNV Funding, LLC or any of its debt collectors, please do not hesitate to contact us immediately for a free and confidential consultation to discuss whether your rights have been violated.
2017 ARCHIVES

Judgment of $19,040.00 is the result of unlawful debt collection efforts by La Jolla Neurosurgical Associates

  • Jared Hartman, Esq.
  • Posted on September 27, 2017
  On September 18, 2017, Judge Frazier entered judgment against La Jolla Neurosurgical Associates in the amount of $19,040.00 as a result of their unlawful debt collection efforts. A copy of the judgment can be found by clicking HERE. The case arose out of unlawful attempts by the medical provider to attempt to collect upon a medical debt that is not owed by the patient. California state laws regarding worker’s compensation mandate that no medical debt can be collected from the patient directly if the medical services were a result of an injury that is under the exclusive jurisdiction of the worker’s compensation board. Unfortunately, La Jolla Neurosurgical Associates began attempting to collect the medical debt from the patient directly, in direct contravention of California’s mandatory laws. The patient’s worker’s compensation attorney even delivered a letter to them instructing them to cease any attempts to collect from the patient directly, and provided them clear instructions on how they could collect the debt through the worker’s compensation process. However, they refused to abide by the clear instructions and persisted in their efforts to collect from the patient directly. In their collection letters, they used ominous language that clearly misrepresented the legal status of the debt by sternly warning the patient that he personally owed the debt. By not only misrepresenting the legal status of the debt, but also by persisting in their efforts to contact the patient directly despite having been put on written notice that the patient is represented by an attorney, La Jolla Neurosurgical therefore violated several provisions of the California Rosenthal Fair Debt Collection Practices Act. A copy of the Complaint can be found by clicking HERE. If you or a loved one are being subjected to debt collection efforts that you feel are unfair or unlawful, please do not hesitate to contact us for a free and confidential consultation to discuss your rights and whether you may have a case for formal litigation. Related Tags:

SEMNAR & HARTMAN PROSECUTING EQUIFAX FOR MASSIVE DATA BREACH

  • Jared Hartman, Esq.
  • Posted on September 21, 2017
  Semnar & Hartman Prosecuting Equifax For Massive Data Breach By now, virtually all Americans must have learned about the massive data breach of Equifax that occurred earlier this year. On September 7, 2017, Equifax announced publicly (for the first time) that it had been the subject of a hackers’ data breach in July of 2017, and that the personal and financial information on upwards of 143 million people within the U.S. had been accessed. All major news agencies have been consistently reporting on this widescale scandal for the past couple of weeks. One need only Google “Equifax data breach” to be inundated with a series of news articles that have been published on an almost daily basis up to now. This all has come out at a time while there has been a strong on-going push by conservative lobbyists and lawmakers to reduce penalties available under the Fair Credit Reporting Act, to eliminate class actions, and to dismantle the Consumer Financial Protection Bureau, as a result the cause for protecting and strengthening such pro-consumer laws and federal agencies has been thrust into the public eye. The severity of this problem should be obvious: Equifax is a company that stores all varieties of personal and financial information, (bank account numbers, credit card numbers, social security numbers, addresses, dates of birth, and much more), and coagulates that information for sale to other companies who need only claim to Equifax to have a “legitimate business purpose” in order to obtain such information, such as landlords, financial institutions, government agencies, debt collectors, investigators, and more. Our firm has even prosecuted scam artists who were able to obtain private information on previous clients by incorporating a debt collection company so that the credit reporting agencies would believe their claim of “legitimate business purpose”, when in reality their business practices were to falsely threaten the consumers with arrest if they did not pay exorbitant amounts of money that they did not actually owe. It should go without saying, then, that the case for strengthening strangers’ access to consumers’ private information should be advanced. Unfortunately, however, Equifax treats such information (and the people associated with the information) as commodities, because Equifax consistently makes dozens of billions of dollars off their business practice of selling peoples’ information. And by treating such highly confidential and sensitive information as a commodity, Equifax appears to have been far too lax in its approach towards maintain the sanctity and security of this information. As more and more information has come out, and continues to come out, it seems that Equifax has been the subject of multiple data breaches over the past several years (including one in March that they failed to disclose on Sept 7th), which means that they should have known that their systems are subjected to on-going attacks and they should have taken extra precautions to prevent such a data breach. Yet they failed to do so. By failing to properly inform the public of such breaches, and attempted breaches, they have left people at risk. If people had been informed sooner, then the people could have taken their own steps to monitor their own information, such as purchasing credit monitoring services from a reliable third-party source in order to receive notifications of new changes to credit files (such as receiving alerts when a new application for credit has been submitted in their name). Also, if people had been informed sooner, then they could have been more diligent about requesting credit freezes to ensure that no new credit applications could be taken out in their name without proving to the creditor that the applicant is truly the person who they say they are. One is instead left to question how many people did, in fact, become a victim of identity theft during the months that Equifax failed to disclose the breach to the public, and to also ponder whether such identity theft could have been prevented had the public been properly informed sooner? And now, for all time into the foreseeable future, everyone whose information was subjected to the breach is left to wonder when their information will be used for nefarious purposes by the culprits whose desire it is to commit identity theft and/or stealing directly from bank accounts. When corporate profits are placed over the concern and well-being of the people, then the people undoubtedly suffer and lose—often-times with such losses being irreparable. Thankfully, there are strong consumer advocates across the country who are ready to jump in to the battle and continue to fight for what is right in this world. For example, we have recently filed a Class Action lawsuit against Equifax to not only seek monetary compensation for our client, and all Class members, for the damage caused by the breach based upon Negligence principles, but to also request injunctive relief so that the courts can order Equifax to fix its problem. Our Complaint can be read by clicking HERE. As always, if you or a loved one has any concerns about issues related to credit reporting, whether you have been identified as one of the “effected” people or even if you have something inaccurate on your credit reports, please do not hesitate to contact us for a free and confidential consultation.

OCWEN AND IMPAC MORTGAGE MOTION TO DISMISS DENIED

  • Jared Hartman, Esq.
  • Posted on August 24, 2017
  On August 23, 2017, Judge Miller of the Southern District of California denied a motion to dismiss filed by Ocwen and Impac Mortgage Corp., so that all causes of action remain in litigation. A copy of the court’s ruling can be found by clicking HERE . In this case, the plaintiffs allege that Ocwen and Impac granted an affordable loan modification, and after the plaintiffs accepted the modification by following all terms required by the defendants they reversed course and refused to honor the agreement while claiming that they had determined the agreement was not affordable for them. The allegations further claim that, after refusing to honor the agreement that the defendants had offered and granted to plaintiffs, they proceeded to reject any and all payments that plaintiffs made in furtherance of the agreement, submitted false credit reporting that claimed the plaintiffs were in default each month in a much higher amount than the modification granted, repeatedly uttered false threats of foreclosure with the apparent intention of scaring the plaintiffs into paying the higher amount and disregarding the affordable modification, and repeatedly claiming to plaintiffs that they were in default in an amount much higher than the affordable modification. The plaintiffs tried for several years to obtain the defendants’ compliance with the agreement in order to avoid litigation. Defendants then tried to use that against them by seeking dismissal for statute of limitations grounds, among other arguments, but the motion grossly misapplied the law of statute of limitations. After so many years of being beaten down by the defendants when the plaintiffs were simply trying to do the right thing, the ruling today is a great result that allows them to continue pursuing justice against these companies who apparently are not ashamed of placing their own business profits over the concern and care for their own customers.

TRANS UNION, LLC HIT WITH WHOPPING $60 MILLION JURY VERICT

  • Jared Hartman, Esq.
  • Posted on June 21, 2017
  Recently, in the Northern District of California, a jury returned a verdict of $60 million dollars against Trans Union, LLC (reportedly the largest FCRA verdict in history) based on class action allegations that Trans Union, LLC’s procedures inaccurately mixed innocent consumers with the names of terrorists and criminals with similar names from a government watch list. Reporter Cara Bayles of law360.com recently wrote about the verdict and explained that, “TransUnion LLC’s credit reports checked consumers against the U.S. Department of the Treasury’s Office of Foreign Assets Control database, which lists terrorists, drug traffickers and other criminals. But, the suit alleged, reports about law-abiding consumers were sometimes linked to similarly named criminals on the OFAC watch list.” Ms. Bayles’ article can be read HERE . The 8,185 class members were made of 8,185 individuals, each of whom were awarded by the jury roughly $984 in statutory damages and $6,353 in punitive damages, bringing the total award to $8 million in statutory damages and $52 million in punitive damages. The jury verdicts can be viewed by clicking HERE and HERE. Our law firm is also experienced in handling FCRA violations based upon mixing information between consumer files. If you or a loved one have experienced any similar problems, do not hesitate to contact us for a free and confidential consultation to discuss your rights.

LIVING A “MIXED-FILE NIGHTMARE”

  • Jared Hartman, Esq.
  • Posted on April 4, 2017
  With shocking frequency, the credit reporting agencies mix the files of two vastly different people to where one person suffers the consequences of another person’s bad life choices simply because they share a common name. For example, Lisa S. Davis published a very well-written article for The Guardian recently that describes the nightmare that she was forced to endure because her credit file had been mixed with multiple other women of the same name. The author’s nightmare included having to falsely plead guilty to traffic violations incurred by another “Lisa Davis”, after the judge threatened to jail her for lying about not being the culprit, so that she could clear her suspended driver’s license (which had been suspended erroneously due to the other “Lisa’s” traffic infractions). For years the author had believed that the other “Lisa Davis” had been stealing her identity, but in reality the system had mixed her identity with multiple other people of the same name. This article can be read in full by clicking HERE Even though the above author’s situation happened in connection with background checks and the DMV, the “mixed file nightmare” more frequently arises in credit scenarios with respect to credit reports. This is typically discovered when someone is denied credit due to a history of negative credit in his/her file that was incurred by someone else, or receives lawsuits and/or debt collection efforts meant for someone else of the same name. One example occurred to a Seattle woman named named Julie Miller. She had attempted to obtain credit in order to assist her disabled brother, including her desire to outfit her house to make it more disabled-assistive. She was repeatedly denied credit due to her file containing a long history of negative credit accounts incurred by someone else with a similar name. Her attempts to rectify the situation were routinely ignored by Equifax for approximately two years. Thus, a lawsuit resulted in a jury verdict of $180,000.00 in actual damages and $18.4 million in punitive damages. An article on this verdict can be read HERE Our law firm also prosecutes these cases. In one matter, the client was denied credit due to his credit file containing a long history of negative credit incurred by his father. Experian did not identify the son as a person, and tagged the son’s identity to the father’s credit file. Thus, when a credit report was prepared for the son (who apparently didn’t exist according to Experian’s records), the report contained only information related to the father’s negative credit history. As a result, the son was denied credit. When the son attempted to rectify this problem with Experian, his attempts were denied because he was using his own (and true) social security number as his identifying information in his letters to Experian. Because Experian did not recognize him as a person under that social security number (his true SSN), Experian denied every request. Therefore, Experian placed him in a completely helpless situation to where he had no choice other than to file a lawsuit to get his file corrected and get his life back in order. The lawsuit also involves Corelogic, who is a reseller that was paid by the creditor to obtain the reports from Experian. Corelogic knew the information was not able to be published as the son’s credit history, yet passed the information on to the creditor as if it was the son’s accurate report anyway. The third video is called: “Defending yourself in a lawsuit”. If you want to learn how to represent yourself, hear about common defenses against debt collectors, and gain knowledge of possible outcomes to your trial, then watch this video. NOTE: Our firm does not recommend representing yourself, as you will be facing an attorney with specialized education and training on how to argue their case against you. While it is your right to decide to represent yourself, we advise that you should have legal counsel on your side in order to not run into a legal minefield full of issues and problems that you may not anticipate. The complaint for this case can be read by clicking HERE If you or a loved one is experiencing anything similar, please do not hesitate to contact us for a free and confidential consultation.

WHAT TO DO WHEN BEING SUED BY A DEBT COLLECTOR

  • Jared Hartman, Esq.
  • Posted on March 28, 2017
  The National Association of Consumer Advocates (NACA) has released a series of educational videos to help give basic information to individuals who are faced with debt collection efforts and debt collection lawsuits. The information in these videos is very beneficial, and is information that we are happy to discuss further with respect to any particular situation that you or a loved one may be facing. Keep in mind that these videos were produced with a nation-wide audience in mind, and there may be laws in your particular state that must be analyzed to determine whether the debt collector has (or has not) violated your rights under your state laws. We regularly handle debt collection defense cases, and we have strategies in our tool chest that may help you or your loved ones when faced with debt collection lawsuits. Please watch these videos below, and feel free to call us for a free and confidential consultation to discuss your rights. The first video is entitled: "Dealing with Debt Collectors". Are you being illegally harassed? If you are having problems with debt collectors, watch this video to learn about your rights under the Fair Debt Collection Practices Act and state laws. The second video is called: “I received notice of a lawsuit, what should I do”. If a debt collector files a lawsuit against you to collect a debt, discover what to do next. The third video is called: “Defending yourself in a lawsuit”. If you want to learn how to represent yourself, hear about common defenses against debt collectors, and gain knowledge of possible outcomes to your trial, then watch this video. NOTE: Our firm does not recommend representing yourself, as you will be facing an attorney with specialized education and training on how to argue their case against you. While it is your right to decide to represent yourself, we advise that you should have legal counsel on your side in order to not run into a legal minefield full of issues and problems that you may not anticipate. The fourth video is called: “Was I served legal papers properly?” Learn about one of your key defenses. Determine if you were served papers properly. The Fifth video is entitled: “I have a judgment against me.” If you lost your debt defense case (or did not know it even occurred) and your wages or bank account is being garnished, learn what you can do. Each of these videos can be viewed on the NACA website, which also includes very helpful information regarding your rights under the Fair Debt Collection Practices Act and basic information on steps you should take to protect yourself. You can find this webpage at the link below: http://www.consumeradvocates.org/for-consumers/debt-collection PLEASE NOTE: Nothing in the above is to be taken as legal advice and is only intended to serve as solicitation for a more in depth consultation. Proper legal advice can only be given after a full consultation to discuss all details of your particular circumstances in a confidential setting.

POLICE BRUTALITY AND PROTECTING CIVIL RIGHTS

  • Jared Hartman, Esq.
  • Posted on February 15, 2017
  In addition to consumer rights protection, our firm also handles civil rights matters related to police brutality. With the rise of popularity in cell phone videos and social media, such as “Facebook Live”, the public has grown to be much more aware of police brutality and other civil rights violations in their interaction with citizens. It is certainly a very scary and traumatic experience, but thankfully Section 1983 of the Civil Rights Act exists to protect victims and allow the citizens to seek retribution for the damage that can be done. Section 1983 of Title 42 of the U.S. Code allows anyone within the United States to sue a government official for violation of a constitutional right. In police brutality suits, this allows citizens to file a lawsuit against an officer who commits violations such as: 1) the Fourth Amendment (physical touching (even with bullets or a tazer) is a "seizure" under the Fourth Amendment) by using excessive force or by unlawfully detaining/arresting someone; 2) the Fifth Amendment, by intentionally refusing to read a suspect their Miranda rights and persisting at interrogations; or 3) the 14th Amendment, such as using racial slurs or verbal abuse based on race violating one’s right to equal protection. These cases can undoubtedly become complicated based upon the legalities of immunity and whether constitutional and/or statutory rights have been violated by particular conduct. Consultation with an experienced attorney in these areas is vital. Our firm has filed two such lawsuits in the past as a result of allegations of excessive force and similar constitutional rights violations committed by San Diego Sheriff’s Deputies. In one case, the allegations included a claim that a person with mental illness was drug off a tree stump by Sheriff’s Deputies that caused him to land face-first into a bed of cacti, and the Deputies proceeded to tazer him and allow the police canine to attack him without any threat of physical harm from the victim to the Deputies. That Complaint can be read by clicking HERE. In another case, the lawsuit involves allegations that a Sheriff’s Deputy unlawfully detained a Top Gunnery Sergeant in the Marine Corps and his female friend, and when the Marine verbally protested what appeared to be harassment the Deputy unlawfully escalated the situation to a point where the non-combative victim was physically beaten by all four Deputies, which caused the Marine to suffer a torn rotator cuff and abrasions/cuts to his face and fingers. That Complaint can be read by clicking HERE. This type of unlawful behavior should not go unpunished. Citizens who do not pose a threat of violence to police officers deserve to have peaceful non-violent encounters, which help to foster trust and cooperation between the police and the communities. When the police adopt a militaristic “us versus them” approach to their daily interactions with the communities, then trust and communication are lost, and everyone loses. If you or a loved one have experienced anything similar, please do not hesitate to contact us for a free and confidential consultation to discuss your rights and whether they may have been violated. DISCLAIMER: nothing in the above should be construed as legal advice. Proper legal advice can only be given in a confidential consultation where all facts and circumstances are discussed in full. The above should only be taken as anecdotal discussions for informational purposes.

STUDENT LOAN GIANT NAVIENT HIT WITH THREE GOVERNMENT LAWSUITS IN ONE DAY

  • Jared Hartman, Esq.
  • Posted on January 25, 2017
  s reported by the Washington Post on January 18, 2017 (the article can be read by clicking HERE), the student loan giant Navient was hit with three government lawsuits in one day for multiple consumer rights violations. Danielle Douglas-Gabriel reported, “Among the most serious charges in the CFPB complaint is an allegation that Navient incentivized employees to encourage borrowers to postpone payments through forbearance, an option in which interest continues to accrue, rather than enroll them in an income-driven repayment plan that would avoid fees. As a result, the CFPB says Navient amassed $4 billion in interest charges to the principal balances of borrowers who were enrolled in multiple, consecutive forbearances from January 2010 to March 2015.” With respect to the lawsuit brought by the Consumer Financial Protection Bureau, CFPB Director Richard Cordray said “Navient has systematically and illegally failed borrowers at every stage of repayment.” State Attorney Generals of Illinois and Washington also filed a lawsuit that, in addition to pursuing similar claims as the CFPB with respect to servicing violations, also accuse Navient (through its former parent company, Sallie Mae) of peddling “’risky and expensive’ subprime private student loans that carried high interest rates and fees”. AG Madison stated, “Navient and Sallie Mae saddle students with subprime loans that Sallie Mae designed to fail.” As quoted by Douglas-Gabriel, “The lawsuits are full of deeply disturbing allegations,” said Rohit Chopra, senior fellow at the Consumer Federation of America and the former student-loan point man at the CFPB. “If this is true, then the company’s actions may be responsible for some of the pileup of defaults that we’ve seen in recent years.” Our firm at Semnar & Hartman, LLP has also recently filed suit against Navient. A copy of the Complaint can be read by clicking HERE. In this lawsuit, the consumer alleges that she paid off the loan with Navient in full, yet Navient proceeded to commit credit reporting violations by falsely reporting that the account had a current balance even after it had been paid in full, then falsely verified to Trans Union that the incorrect reporting was accurate, and also falsely reported to Experian that the account had been discharged in bankruptcy…. Thus, it appears that not even customers who pay their loans in full to Navient are free from their outrageous and abusive consumer violations. If you also have concerns about the way you are being treated by Navient, please do not hesitate to contact us for a free and confidential consultation.

Inaccurate Credit Reporting By Welk Resort After Releasing Property Back To Welk?

  • Jared Hartman, Esq.
  • Posted on October 5, 2017
  We have recently initiated litigation against Welk Resort Groups concerning inaccurate credit reporting, and we are looking for anyone else who may have suffered the same problem so that we can obtain further information for our investigations. If you have suffered the same problem as below, please contact us for a confidential discussion. We suspect that Welk has a business practice of sending letters to owners in default of their monthly payments to offer that, if the home owner were to agree to release the property back to Welk, then all monies allegedly owed will be deemed as fully satisfied, but thereafter continuing to report to the consumer credit reporting agencies that the home owner still owes a deficiency balance to Welk without any clarification at all that the deficiency had actually been satisfied in full and that no deficiency can be pursued against the owner. Clearly, such reporting is factually inaccurate based upon the terms of Welk’s own offer. This has caused our client to suffer harm, because she was specifically denied a new home loan with the new potential lender specifically identifying the Welk credit reporting of a deficiency balance as the cause for the denial. A copy of our complaint can be found by clicking HERE. Therefore, if you have ever returned a property back to Welk after receiving such a letter, we would like to speak to you so that we can discuss your particular circumstances as well and obtain further information for our investigations. Related Tags:
2018 ARCHIVES

Kenosian & Miele’s Default Judgment based on faulty service set aside and case dismissed!

  • Jared Hartman, Esq.
  • Posted on January 10, 2017
On January 9, 2018, Judge Scott of the San Joaquin Superior Court granted our Motion to Vacate Default Judgment and Dismiss the case based upon faulty substitute service. Ordinarily, California law permits default judgments based upon substitute service, but only if the substitute service requirements have been strictly followed. This means the party attempting to serve the complaint and summons must exercise reasonable diligence to achieve personal service, and can only leave the complaint and summons with a competent adult residing at your place of residence or usual address of mailing, or a person reasonably in charge of your place of business. They must then follow up by mailing the complaint and summons to your usual place of mailing. In our case, Kenosian & Miele sued our client for a credit card debt that the client contends was never his. The bank even confirmed via telephone that they had never issued a credit card in his name or under his SSN. It is still not clear how this lawsuit came named our client. However, Kenosian & Miele attempted substitute service at a residence where he had not resided for years, even though all of the client’s public records proved that he resided in a completely different city. The client did not discover the problem until Kenosian & Miele had already obtained a default judgment and executed a levy upon the client’s bank account. Because Kenosian & Miele failed to provide sufficient documentation to support their argument that they believed he actually resided at the address where they attempted substitute service, even though they clearly had access to the client’s true address of residency through public records, our motion to vacate the default judgment was granted for lack of proper service. On top of that, because Kenosian & Miele had failed to accomplish valid service within 3 years of filing the complaint in 2012, the case was required to be dismissed pursuant to Dill v Berquist Construction Co., 24 Cal. App. 4th 1426, 1433 and CCP 583.210(a). If you have been served with a complaint and summons, it is vitally important that you must act on it quickly, because California law provides very strict deadlines and requirements for responding to the complaint. If you have discovered that a judgment has been entered against you already, then it is also vitally important that you must act quickly in seeking to set it aside, because again, California law provides very strict deadlines and requirements for seeking the set aside. It is best to have a lawyer help you through this process, because debt buyers and debt collection law firms usually attempt to take advantage of your lack of experience and knowledge in trying to represent yourself. Related Tags:

CITIZENS BANK MOTION TO DISMISS DENIED FOR INACCURATELY REPORTING DEBT AFTER FORECLOSURE

On January 30, 2018, Judge Hayes of the Southern District federal court denied Citizens Bank’s motion to dismiss our inaccurate credit reporting claims.  Based on California Civil Code 580b, when a lender decides to foreclose on a home instead of pursuing the borrower for financial damages, and if the mortgage was undertaken for the purpose of purchasing the house, then the lender cannot pursue the borrower for any deficiency between what is left of the balance of the loan after foreclosure sale.  This is known in California as the “one bite” rule—the lender only gets “one bite” at the apple in pursuing recourse for the default. Judge Hayes agreed with our allegations that, because the lender cannot pursue the borrower for any deficiency owed on the balance of the loan, then the lender also cannot report that deficiency upon the borrower’s credit reports.  In this case, Judge Hayes found that Citizens Bank had reported false, inaccurate, and misleading information, because Citizens Bank had been reporting on our client’s credit reports that he still owed a significant balance upon the loan after the foreclosure sale, which created the misleading impression that our client was still in default upon the account even though our client had no liability at all upon the account after the Bank chose to proceed with a foreclosure sale. You can read a copy of the ruling by clicking HERE. Related Tags:

REPORT FINDS THAT CALIFORNIA TOPS THE LIST OF WAGE THEFT VIOLATIONS

On June 5, 2018, the entities Corporate Research Project of Good Jobs First and the Jobs With Justice Education Fund published a report called “Grand Theft Paycheck: The Large Corporations Shortchanging Their Workers’ Wages”.  This report discusses findings from a nearly 8-year study of companies across the country who have suffered penalties for wage-theft claims since 2000.  The report found that California hosted more than half of the offending companies. According to the report, many mega companies such as Wells Fargo, Wal Mart, FedEx, Bank of America, Walt Disney Co., Children’s Hospital Los Angeles, 24 Hour Fitness, Oracle, Kaiser Permanente, Jack in the Box Inc., and Smart & Final boosted their profits by forcing employees to work off the clock or by not paying their required overtime. The report further found that such wage theft violations were “pervasive” and “goes far beyond sweatshops, fast-food outlets and retailers”. By analyzing 1,200 successful wage violation lawsuits brought against large-scale companies, the report found that $8.8 billion in penalties have been paid out between the lawsuits as well as penalties to the U.S. Department of Labor Wage and Hour Division. The most common issue found was unpaid overtime, but also found common issues with meal/rest break violation penalties as well as employees being misclassified as independent contractors, which resulted in the employee being denied wages and benefits that must be provided to employees. You can read a copy of the report by clicking HERE.   Our law firm is dedicated to protecting employees’ rights, whether it be wage theft violations or discrimination/retaliation.  If you or a loved one has experienced any such issues, please do not hesitate to contact us for a free and confidential consultation. Related Tags:

DITECH MOTION TO DISMISS DENIED AFTER REMOVING CLIENT’S NAME FROM MODIFICATION AGREEMENT

On July 3, 2018, Judge Birotte Jr. of the Central District of California denied a motion to dismiss filed by Ditech that argued our client was not removed from the home mortgage loan even though the lawsuit alleges that Ditech undertook the specific actions of removing her name as a customer and signatory to a modification agreement entered into by the ex-husband.  Ditech argued that the modification agreement contains a clause that shows the underlying loan still applies in full force as against our client.   However, California law specifically holds that any inconsistent terms between the modification agreement and the underlying agreement are replaced by the modification agreement.  Our position was that the modification agreement only applies between Ditech and the ex-husband, because it is a basic principal of contract law that someone cannot be held liable to something they did not agree to, and therefore any term in the modification agreement that shows the original note still applies in full force only applies to Ditech and the ex-husband subject to the inconsistent terms in the modification agreement.   The Court agreed with our allegations, ruling that Ditech’s actions in removing our client’s name as a customer creates at least an inference worthy of discovery and litigation that Ditech intended to remove our client from the loan altogether, and that when Ditech continued reporting to the credit reporting agencies that our client remains obligated upon the loan in the full amount then Ditech furnished false/inaccurate/misleading information as against our client.  Furthermore, Judge Birotte also agreed that when Ditech continued to call our client directly seeking payment after the ex-husband went into default, Ditech engaged in unlawful debt collection in violation of the Rosenthal Act. Read the opinion by clicking HERE. Related Tags:

SUFFERING MOLD DISEASE? YOU HAVE RIGHTS!

On September 10, 2018, our firm filed a lawsuit against three defendants (the home owner/landlord, the property management company, and the property management company’s agent) related to our client contracting mold disease at a townhome in Santa Monica. A landlord is required by law to ensure that the residence is safe and habitable, and various conditions can result in the home being rendered uninhabitable.  Mold is now specifically recognized by California law as one of those very conditions that can render a residence uninhabitable. Pursuant to California Health & Safety Code Section 17920.3, visible mold and dampness can render a housing unit to be substandard, which means the landlord must take reasonable and prompt actions to prevent such conditions from occurring. The lawsuit filed by our firm alleges that our client and her roommates put the defendants on written notice of multiple leaks and floods, but the defendants failed to take reasonable and prompt action to fix the leaks.  The defendants clearly knew this residence was prone to mold growth, because they included a mold addendum to the lease that specifically advised the tenants of such a condition. Furthermore, even a plumber even notified the defendants that the wood where the leak occurred would need refurbished and dehumidified, which should have prompted the defendants to take immediate action to prevent mold growth.  Unfortunately, however, the defendants’ lack of prompt action resulted in one leak going unrepaired for 3 days, while another leak went unrepaired for almost 2 months.  The tenants were also left to attempt to clean up the flooded water on their own without any professional services being hired by defendants. Eventually, mold grew and festered in multiple areas, which resulted in our client getting sick and suffering multiple issues related to mold disease.  A copy of our complaint can be found by clicking HERE. It is very important to know that mold disease is very serious and dangerous.  Anytime you suspect mold is growing in your residence, notify your landlord immediately.  Likewise, if there are any water leaks from any pipes or windows, you must promptly notify your landlord and insist that they fix the leak right away.  All notifications should be done in writing, which means email is the best method to deliver such notices.  In doing so, you are not only ensuring that your rights are protected, but also your health.

TAKING ON HEALTH NET FOR ALLEGATIONS OF INSURANCE BAD FAITH

On September 17, 2018, our firm took over representing two out of many drug and alcohol treatment centers who allege they were taken advantage of by Health Net in being falsely denied claims for treatment being provided to recovering addicts. After passage of the Affordable Care Act, substance abuse treatment became an essential health benefit required to be included in individual health plans. Health Net began to offer better benefits for such coverage than its rivals and committed to paying reimbursement at a rate of 75% of the billable amount. At some point, however, in 2015 and 2016, Health Net began denying all claims across the board from any and all substance abuse treatment facilities. Health Net began to deny all claims as suspicion of fraud, and swept all such claims into the Special Investigation Unit and demanded burdensome amounts of records to justify payment. Even though Health Net would initially provide preliminary authorization for such claims, which would then result in the facilities accepting the patients and beginning treatment with the understanding that their treatment would be reimbursed at the 75% billable rate, Health Net then began denying all claims en masse under the guise of suspected fraud. Curiously, however, this all came at a time when Health Net was being purchased by Centene for $6.3 billion, which has resulted in the suspicion that Health Net was simply trying to make itself appear more profitable on paper during the acquisition by Centene. Eventually, Health Net began to remove treatment facilities out of the SIU, but then implemented a policy to only pay reimbursement at the Medicare rate of 8% of the billable amount. Sadly, this has resulted in many facilities being forced out of business and turning their drug addicted patients away without any further meaningful hope for treatment. While Health Net continues to deny it engaged in any wrongdoing, it appears the California Department of Insurance for one disagrees with Health Net’s position. The CDI has pursued enforcement actions against Health Net, and in so doing has alleged that Health Net engaged in "unfair or deceptive" business practices by failing to settle provider claims fairly in which its liability "had become reasonably clear." For more information and a more detailed summary of the history of these issues, feel free to read the LA Times Article from December 6, 2017, by Michael Hiltzik, by clicking HERE. Related Tags:

DISCRIMINATION IN THE WORKPLACE CANNOT BE TOLERATED

California anti-discrimination laws are very strong, and they make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons.  In general, it is unlawful to discrimination against an employ based on gender, sexual orientation, race, ethnicity, religious beliefs, and other protected categories.  Disabilities also entitle employees to protection and reasonable accommodations, whether the disability be a physical or cognitive disability or pregnancy. Discrimination may take many forms, including being denied a job, terminated from a position, demoted, denied a promotion, or assigned to a position that is not as favorable or financially lucrative as another position to which you qualify. Our office has recently filed two discrimination-based cases.  In one case, our client alleges that Miles Preservation, Inc. discriminated against her due to her status as a pregnant and expecting mother.  The allegations of discrimination include terminating her before her pregnancy leave date began, which is a mandatory right for all women to exercise without fear of retaliation.  You can read the complaint by clicking HERE. In another, more recent case, our client alleges that Pipeline Carriers, Inc. discriminated against him for suffering a cognitive disability, refused to grant him reasonable accommodations, and refused to grant him proper medical leave.  Even though our client had a doctor’s note mandating that he remain off work for a specified period of time, the company considered him to have “abandoned” his job and terminated him and refused to accommodate his request for medical leave.  You can read this complaint by clicking HERE. If you or a loved one feel that you have suffered discrimination or retaliation for simply being a member of a protected class, or for suffering a disability, please do not hesitate to contact us for a free and confidential consultation to discuss whether your rights have been violated.

SUFFERED A JOB DENIAL OR PROMOTION DENIAL BASED ON INACCURATE BACKGROUND CHECK INFORMATION?

The Federal Fair Credit Reporting Act (FCRA) requires that anytime an employer makes a decision to not hire an applicant due to results of a background check, the employer must provide the applicant an opportunity to dispute the findings. The employer has the legal responsibility to provide the applicant with what is called an “adverse action notice”.  This notice explains the applicant’s rights under the FCRA if the employer decides to take an action determined to be “adverse”.  An “adverse action” constitutes a decision of the employer to not hire, promote, retain or reassign the applicant based on the results of a background check report. The “adverse action notice” must be delivered to the applicant before the adverse action is actually taken.  This procedure is intended to provide the applicant with a copy of the background check report and “A Summary of Your Rights under the Fair Credit Reporting Act”. By requiring the notice and report to be provided before the action is actually taken, the intent is to allow the job applicant a reasonable amount of time to contact the background check agency to dispute any inaccurate information in the report. Our office has recently filed a class action lawsuit against HKA Enterprises, LLC for failing to comply with these requirements of the FCRA.  HKA Enterprises utilized information contained within a background check report to not hire our client, but it failed to provide the required adverse action notice and a copy of the report to our client.  Please review the Complaint by clicking HERE. If you have suffered a similar set of circumstances, please do not hesitate to contact our office for a free and confidential consultation to determine whether your rights have also been violated in such a way.

Mortgage Servicers Continue to Ignore Deferment Protections for California Military under State Law

It should go without saying that the stress and worry of being deployed is high enough on its own. Add to that stress the concerns over mortgage loans, vehicle loans, credit cards, student loans, and leaving property in storage for several months. Fortunately, California law provides such protections to military reservists that goes much farther than the protections afforded by the Federal Servicemembers Civil Relief Act. For instance, California Military and Veterans Code 800 provides military reservists called to active duty very strong protections with respect to up to 6 months of deferment on mortgage loans, residential lease contracts, automobile loans, credit cards, and other consumer debts. During this time, no penalties can be assessed against the account for non-payment, the account cannot be reported as delinquent or negative to credit reporting agencies, and no foreclosure proceedings on a mortgage loan can be undertaken. These protections apply equally to the deployed servicemember’s spouse and dependents. One way that the California law is stronger than the Federal law is that, unlike the Federal law, the State law does not require petitioning the courts to first obtain an order of deferment, because the protections are required to be given if the servicemember simply provides a letter to the creditor, sworn under penalty of perjury, specifically requesting such a deferment and includes a copy of the deployment orders therein. If the credit/loan obligation was incurred before the date of the deployment orders, then the protections are mandatory. Unfortunately, however, we have seen a disturbing pattern over the years where out-of-state mortgage servicing companies fail to understand California laws in this regard and fail to honor and respect these State laws. But our firm is here to help, as we have extensive knowledge and experience in these laws. We even met with the Colonel who was integral in the writing and passing of these laws to gain a better understanding and insight into their application. This means you and your loved can trust in our ability to handle these claims and advocate on your behalf. Recently, we filed two new lawsuits against such mortgage companies who just can’t seem to get it right. On November 8, 2018, we filed a lawsuit against Pacific Union Financial, LLC, which you can view by clicking HERE. On November 10, 2018, we filed a complaint against Selene Finance, LP, which you can view HERE. In each case, the spouse left home during the servicemembers’ deployment has had to endure the completely unnecessary stress and aggravation of dealing with repeated false claims of delinquency and false claims of the amounts owed on each mortgage loan. During a time that is hard enough for the non-deployed spouse to be left home addressing all the family financial responsibilities alone, they were forced to endure more stress that they should have been able to trust would not have arisen. If you or a loved one are experiencing similar problems, please do not hesitate to contact us to discuss your rights and whether our firm can help protect you as well.