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.

The post OVERSHADOWING VIOLATIONS CLASS CERTIFICATION PRELIMINARILY APPROVED appeared first on Temecula Consumer Attorneys.

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.

The post BEEN VICTIMIZED BY A DEFAULT JUDGMENT BASED ON FRAUDULENT PROOF OF SERVICE? appeared first on Temecula Consumer Attorneys.

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.

The post SCRIPPS MEMORIAL HOSPITAL VIOLATES WORKER’S COMPENSATION LAWS appeared first on Temecula Consumer Attorneys.

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.

The post BEING HARASSED BY CITY TITLE LOAN, LLC? appeared first on Temecula Consumer Attorneys.

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.

The post WELLS FARGO RECEIVES MASSIVE $190 MILL. FINE FOR FRAUDULENTLY OPENING 1.5 MILL. FAKE ACCOUNTS appeared first on Temecula Consumer Attorneys.

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

The post HARD VS. SOFT INQUIRIES ON CONSUMER CREDIT REPORTS appeared first on Temecula Consumer Attorneys.

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 post WELLS FARGO PENALIZED OVER UNLAWFUL STUDENT LOAN SERVICING PRACTICES appeared first on Temecula Consumer Attorneys.

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:

This 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!

The post THE DEBT BUYING INDUSTRY appeared first on Temecula Consumer Attorneys.

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!

The post DEFAULT JUDGMENT AGAINST ASSISTED CREDIT SERVICES, INC. FOR $30,784.65 FOR MALICIOUS CREDIT REPORTING VIOLATION AND ATTEMPTING TO COLLECT A PAID DEBT appeared first on Temecula Consumer Attorneys.

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.

The post BEEN HARASSED BY LVNV FUNDING, LLC OR ITS COLLECTION AGENTS? appeared first on Temecula Consumer Attorneys.

On April 6, 2016, in the case of McCaskill v. Navient Solutions, Inc. in the US District Court, Middle District of Florida, Case No. 15-cv-1559, the Court granted a motion for partial summary judgment as to liability in favor of the consumer-plaintiff based on Navient calling his cell phone with an automatic telephone dialing system upwards of 727 times.

As we all know, the Telephone Consumer Protection Act (TCPA) prohibits a company from placing calls to a cell phone by using equipment that has the capacity to store and generate numbers to be dialed at random, and also if the calls are placed with robotic or pre-recorded voice messages. The only way for a company to not be found in violation of the TCPA for these calls is if the calls were placed for emergency purposes, or with the consumer’s prior express consent.

Because these calls were placed for purpose of debt collection, they were not for an emergency purpose. However, the issue in the lawsuit was with respect to prior express consent. Because Navient obtained the phone number through a public records search and did not get the number from Plaintiff voluntarily providing it to them, and because Navient failed to prove that she gave authority to another person to use her number for this Navient account, then Navient lost on summary judgment (meaning the evidence was so overwhelmingly in favor of the Plaintiff that Navient could not defend its case on liability in front of a jury).

Therefore, the Plaintiff in this case has now been awarded liability against Navient for upwards of 727 violations of the TCPA at $500 per call, for damages of $363,500.00. The motion for summary judgment left open for a jury to determine whether the violations by Navient were willful. If a jury does find the violations were willful, then the Court could impose triple damages in Plaintiff’s favor, thereby awarding her upwards of $1,090,500.00.

This court’s ruling can be read by clicking HERE.

Below are some very important points to be taken from the Court’s ruling:

1. Defendants identify no facts suggesting that Plaintiff knowingly released her cell phone number to [Navient]. Indeed, Defendants point to no evidence that Plaintiff had any contact with Defendants prior to receiving their calls. Defendants instead argue that Plaintiff manifested her consent by allowing her phone to ring over 700 times without attempting to stop the calls. (Doc. # 97 at 12). The Court is not persuaded. The statute requires “express consent,” 47 U.S.C. § 227(b)(1)(A), and Plaintiff’s silence in the face of 727 phone calls demonstrates, at best, presumed or implied consent, which is not sufficient under the statute. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7991 (2015).1
2. Defendants also suggest that there is a “significant question” about whether the -6140 number is exclusively Plaintiff’s to use, and thus whether it is a number for which Plaintiff may provide consent. (Doc. # 97 at 12). The TCPA requires prior express consent to be supplied by “the called party.” 47 U.S.C. 227(b)(1)(A). The Eleventh Circuit holds that “the called party” is the current subscriber of the cell phone, not the intended recipient of the call. Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th Cir. 2014)Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251–52 (11th Cir. 2014). More specifically, the subscriber is “the person who pays the bills or needs the line in order to receive other calls.” Osorio, 746 F.3d 1251. Similarly, the FCC recently defined “called party” as “the subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 8000-01.
3. Defendants point out that Plaintiff used the -6140 number as her residential line for years and also listed it as the phone number for LFJ on her 1999 application to incorporate the church. (Doc. # 97 at 11-12). These facts, while undisputed, are not directly relevant to whether Plaintiff is the “subscriber,” that is, the person who pays the bills for the number or who is the customary user of the number. Osorio, 746 F.3d 1251; In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 8000-01.
4. Plaintiff testified that the bill for the -6140 number goes to her daughter Melissa, because she is on a family plan, but that Plaintiff pays her part of the bill. (Pl. Dep. at 24). Plaintiff also testified that she uses the phone both for herself and for LFJ, for which she is the pastor. (Id. at 43). Because Defendants cite no evidence indicating that another person pays the bills or is the customary user of the -6140 number, Defendants fail to create an issue of fact as to whether Plaintiff is “the called party” under 47 U.S.C. 227(b)(1)(A).
5. Because there is no evidence that Plaintiff, herself, provided prior express consent, the remaining question is whether Newsome consented on Plaintiff’s behalf. In particular, Defendants must establish that Newsome had authority to consent on Plaintiff’s behalf, and that Newsome did, in fact, consent. Osorio, 746 F.3d at 1252. Defendants argue that disputed issues of material fact exist sufficient to preclude summary judgment in Plaintiff’s favor. The Court disagrees.
6. Taking Defendants’ version of the facts as true, Newsome may have confirmed Plaintiff’s cell phone number to Sallie Mae (a point that Plaintiff vehemently disputes). Under Florida law, however, Newsome’s conduct is not sufficient to create an apparent agency relationship absent some evidence that Plaintiff tolerated, allowed, or acknowledged Newsome’s conduct.
7. Accordingly, Defendants fail to establish a genuine issue of material fact regarding whether any of the 727 calls were made with Plaintiff’s prior express consent. As already noted, Defendants do not otherwise dispute that these 727 calls constitute violations of the TCPA. Accordingly, Plaintiff’s Motion for Partial Summary Judgment as to Defendants’ liability on the TCPA claims (Counts I and III) is granted.

If you or a loved one is receiving calls from Navient to collect on a student loan, then please do not hesitate to contact us for a free and confidential consultation

The post STUDENT LOAN GIANT NAVIENT SOLUTIONS, INC. IS ONCE AGAIN IN BOILING HOT WATER OVER ITS DEBT COLLECTION PRACTICES. appeared first on Temecula Consumer Attorneys.

It has become increasingly commonplace in our society for credit reports and credit scores to be a primary driving force behind our ability to freely live and work in the U.S. From buying a car to buying a home, obtaining student loans, obtaining a line of credit to purchase home computer equipment, to leasing a fancy smartphone, and to even obtaining a job in many work-fields, our society has turned to one that thrives on accurate credit reporting. It has even resulted in potential employers and landlords perceiving our level of responsibility and trustworthiness as being contingent upon information contained within our credit reports. Many people don’t realize is that even criminal background checks can be conducted through a credit report public records section.

Therefore, it should come as no surprise that we must have accurate information on our credit reports. In order to have an accurate credit score, the information reported on each account must be accurate. What might come as a surprise, however, is that it is frighteningly common for mistakes to occur in the system of generating information drive by numerical codes and syntax. All it takes is for one person to punch the wrong number in a code, and the output comes out drastically wrong. Or the computer system misreads the syntax, and suddenly two people have their individualized information mixed with each other erroneously.

On April 10, 2016, “Last Week Tonight with John Oliver”, a frightening—albeit comical—presentation was provided to emphasize just how important this topic has become in our every-day lives. You can watch the video here:

In order for a potential employer or landlord to obtain an accurate assumption of our levels of responsibility and trustworthiness as individuals, the information reported on each account must be accurate. Even the slightest wrong comment in the wrong section (for instance, adding “settled for less than full balance” as opposed to “settled for full balance”) can have a dramatic consequence.

Therefore, you as the individual should be diligent in reviewing your own credit reports on a regular basis. It is not acceptable anymore to just ignore what is on your credit report and assume it is all accurate anyway. You may be harmed without even realizing it. For instance, you may be paying a higher interest rate on your private student loans and credit cards or car loans based on inaccurate information that you don’t even know is on your report. Don’t ignore it…you should check your reports every few weeks just to make sure nothing has changed and everything is accurate.

As always, please do not hesitate to contact us for a free and confidential consultation to discuss your rights and answer any questions you may have. If something seems wrong, you should ask what to do about it. We know the right method for lodging written disputes and we are happy to point you in the right direction and answer your questions. And if your rights have been violated, then we are ready and able to pursue action if necessary.

The post TAKING ON THE CREDIT INDUSTRY appeared first on Temecula Consumer Attorneys.

On March 1, 2016, Huffington Post Chief Financial and Regulatory Correspondent Shahien Nasiripour published an article that alleges the public was misled about whether Navient Corp. (under its former name Sallie Mae) violated the U.S. Servicemembers Civil Relief Act by intentionally and systematically overcharging troops on student loans for nearly a decade by failing to lower interest rates to 6% as required by the federal law. Nasiripuor writes that an internal investigation shows, “In Navient’s case, the department improperly credited the company for modifying some troops’ loans when records show that the interest rate reductions had been backdated.” He further writes,”DOJ data strongly suggested that the Education Department missed thousands of violations of federal law when it publicly exonerated Navient” and “In November, another official at the federal consumer bureau said that hundreds of thousands of troops have been forced to make at least $100 million in student loan interest payments that they actually were exempt from.”

Mr. Nasiripour’s March 1, 2016 article can be read by clicking here: http://www.huffingtonpost.com/entry/education-department-misled-public-on-student-loan-contractors-probe_us_56d5d2a7e4b0bf0dab337e33.

Previously, on February 7, 2016, Mr. Nasiripour published an article that quotes current Democratic Presidential hopeful Hillary Clinton as stating that Navient Corp. is “doing some really terrible things” by “misleading” borrowers, and that Navient’s “behavior is outrageous” and she is “totally appalled” by the company. To put these statements into context, Nasiripour further wrote,

“Numerous government agencies have been investigating the nation’s largest student loan specialist over several years for allegedly overcharging borrowers and mistreating them in violation of the law. The Consumer Financial Protection Bureau in August told Navient, which collects borrowers’ monthly payments and counsels them on their repayment options, that it had amassed enough evidence to indicate the company violated consumer protection laws, and it might sue the company in court.”

Additionally, “New York state’s banking regulator and a group of state attorneys general are among the authorities probing Navient’s interactions with borrowers, such as its practice of threatening to seize assets from borrowers in good standing simply because a co-signer of their loan had died.”

Mr. Nasiripour’s March 1, 2016 article can be read by clicking here: http://www.huffingtonpost.com/entry/hillary-clinton-navient_us_56b7a886e4b01d80b246b214

If you or a loved one are experiencing unfairness, harassment, or oppression from Navient Corp., please do not hesitate to contact us for a free, confidential consultation to discuss whether your rights may have been violated.

The post NAVIENT CORP UNDER SCRUTINY ABOUT POSSIBLY CHEATING MILITARY SERVICEMEMBERS ON FEDERAL STUDENT LOANS appeared first on Temecula Consumer Attorneys.

It can be a very intimidating and worrisome experience to be the subject of debt collectors’ aggressive tactics. It is common to experience nervousness, fear, worry, fluttering of the heart with a rise in heart rate and blood pressure, and if the debt collector treats you with indignity you may also feel emotions of anger, embarrassment, shame, and fear. It is common in the debt collection industry for debt collectors to deliberately force their victims into paying the debt by invoking these feelings. The reasoning is that you are more likely to pay the debt if you feel uncomfortable by the interaction, thinking that if you pay them then they will go away. But you do have rights! As is clear from other blog articles on our website, you have the right to be protected from abuse, harassment, oppression, lies, and misrepresentations! Don’t take this lightly, your rights are powerful and you can use them as a shield to deflect the abuse.

The Fair Trade Commission (FTC) has recently put out some very helpful blog articles with videos to explain your rights. In one article, the FTC empowers people to stand up against scam artists. These FTC articles can be found here: https://www.consumer.ftc.gov/blog/stand-fake-debt-collectors and https://www.consumer.ftc.gov/articles/0258-fake-debt-collectors.

Unfortunately, there are plenty of criminals out there that are more than happy to lie about who they are when they pretend to be a legit debt collector, but in reality they are simply trying to take your money through extortion. The most common trick by these con artists is to lie about suing you when there really is no lawsuit pending, and also to lie about police looking for you for committing fraud when in reality failing to pay a debt is a civil breach of contract matter and not a criminal violation. Many times, these con artists also get your employers’ information from public records and credit report inquiries, and they call your place of employment to spread these lies to your boss and co-workers in order to put pressure on you.

The FTC empowers consumers by giving the following advice:

• Ask the caller for his name, company, street address, and telephone number. Tell the caller you won’t discuss any debt until you get a written “validation notice.” If the caller refuses, don’t pay.
• Put your request in writing. The Fair Debt Collection Practices Act (FDCPA) requires any debt collector to stop calling if you ask in writing. Of course, if the debt is real, sending such a letter does not get rid of the debt, but it should stop the contact.
• Don’t give or confirm any personal, financial, or other sensitive information.
• Contact your creditor. If a debt is legitimate – but you think the collector isn’t — contact the company to which you owe the money.
• Report the call. File a complaint with the FTC and your state Attorney General’s office with information about suspicious callers

If you are the subject of debt collection efforts by a legit debt collector, then you still have rights! We find the most common examples of debt collection abuse by legit debt collectors are when they misrepresent the amount you owe, try to collect interest and fees that they are not entitled to, threaten lawsuits when the debt is already barred by statute of limitations, calling at inconvenient times and/or calling with such frequency that the calls are harassing, and inaccurate credit reporting. If you are the subject of debt collection efforts, then you should still take steps to protect yourself by asking for details of who they are, where they are calling from, how did they acquire the debt, when did they acquire the debt, and from whom did they acquire the debt. The FTC has also put out an article giving similar advice, which can be found here: https://www.consumer.ftc.gov/articles/0149-debt-collection.

In addition to the above, you should also not hesitate to contact a consumer protection attorney, such as us at Semnar & Hartman, LLP, for a free and confidential consultation to discuss your rights and to see if a lawsuit can be filed on your behalf.

The post KNOWLEDGE IS POWER – KNOW YOUR RIGHTS appeared first on Temecula Consumer Attorneys.

Imagine a bank—such as Wells Fargo—contacts you and claims you owe them money on a credit card that you’ve never heard of. You ask some questions about the time and location of the application, and you discover that, indeed, this account was opened in your name fraudulently. You tell Wells Fargo’s agents that you never opened this account and you have been the victim of identity theft. However, they ignore your complaints and persists in calling you in an attempt to collect. You are now facing the very real future of continued harassing calls, threatening letters, potential debt collection lawsuits against you, potential wage garnishments and bank levies, and potential negative credit reporting against your name and social security number. All over an account that you never opened. What do you do? How do you protect yourself?

In California, consumers who are the victims of identity theft are actually protected by law from debt collection activity upon the account opened under identity theft, but you cannot just sit idly by and hope everything falls into place. You must take action, and we at Semnar & Hartman, LLP are experienced in helping!!

Under California Code 1798.92-1798.93, if you or a loved one have been the victim of identity theft, you can bring a lawsuit against a debt collector or bank that is claiming they are owed money upon the fraudulent account in order to have a judicial finding (called declaratory relief) that you are not liable upon the account. In connection with such a lawsuit, you can request a court order (called an injunction) that the debt collector or bank stop trying to collect from you, and you can also have the court order that any security interest (such as a car title loan or home mortgage loan) is void and unenforceable. Moreover, if the bank or debt collector has filed a lawsuit against you, you can file a counter claim against them seeking dismissal of their lawsuit in addition to declaratory relief and an injunction.

In order to recover attorneys’ fees, costs of litigation, actual damages, however, you have to put them on written notice of the identity theft and provide them a copy of either a police report or DMV report showing that you lodged a formal report as a victim of identity theft. You have to provide this written notice and the police report to the address identified by the creditor as being their address for processing identity theft claims. You have to also wait 30 days after providing such notice before filing suit. If they have failed to diligently investigate the claim and persisted in their efforts to collect despite your compliance with all of the above, then you may also be able to recover a statutory penalty against them for up to $30,000.00 in addition to actual damages, attorneys’ fees, and costs of litigation.

A sample complaint against Wells Fargo for this very type of allegation can be found by clicking here.

There are other laws under the Federal Fair Credit Reporting Act that protect your credit reports from suffering derogatory accounts opened under identity theft and fraud, that prevent new fraudulently accounts from being reported, that require the credit reporting agencies to remove accounts that have been identified by you as identity theft, and place a freeze on your credit and prevents new accounts from being opened entirely. However, these laws require their own steps to be taken by you and will be reported under a different article. We are experienced in handling these claims as well.

We can help you protect yourself!!! Do not hesitate to contact us immediately for a free and confidential consultation to discuss your rights and to see how we can help.

The post DOES A DEBT COLLECTOR OR BANK REFUSE TO ACCEPT YOUR CLAIM OF IDENTITY THEFT? appeared first on Temecula Consumer Attorneys.

We have talked a lot in other articles about how your attorneys’ fees can be awarded for successful prosecutions of actions under the Federal Fair Debt Collection Practices Act, the Rosenthal Fair Debt Collection Practices Act, the Federal Fair Credit Reporting Act, and the California Consumer Credit Reporting Agencies Act. Sometimes people ask what this means and how are they awarded by the court.

It is not every case that allows for the court to award attorneys’ fees, because typically the court only rules upon a motion for attorneys’ fees after the consumer (our client) wins on the merits. The majority of cases settle for a specific lump sum of money, from which the attorneys will normally take a percentage on a contingency fee basis as their fees. However, if your case goes to trial and you win a verdict in your favor, or if your case is won pre-trial on motion for summary judgment, then the law requires that the creditor or collector who violated your rights to pay your attorneys’ fees by order of the court (unless they decide to settle for a specific amount of fees).

In some cases, and more rarely, the creditor or debt collector against whom the lawsuit was brought might agree to a settlement whereby the consumer (our client) is awarded a specific amount of damages and then our attorneys’ fees and costs are to be decided by the court.

In the attached example that you can read here, the defendants Western Dental Services and their debt collector Herbert P. Sears Company, Inc. did exactly that. They agreed that our client would be awarded a specific, but confidential, sum of money with our attorneys’ fees and costs being decided by motion to the court.

The total amount awarded by the court was $65,277.28 for attorneys’ fees and costs of litigation. This was based on what is called the “lodestar” calculation, which requires the court to simply calculate a reasonable hourly rate by a reasonable number of hours expended by the attorneys in order to come up with the total amount to be awarded.

However, it is often not clear how the attorneys are awarded a certain hourly rate. The lodestar method typically requires the court to look at what is an average hourly rate for other attorneys in the same jurisdiction as the court where the case was filed with similar experience as the attorney whose motion is pending. It is common in the consumer rights area for the courts to rely on the U.S. Consumer Law Attorney Fee Survey Report that is prepared every couple of years in order to document the average salary for consumer attorneys in each region and territory within the United States, mostly based on experience level and years of practice. The 2013-2014 version of this survey was prepared by Ronald L. Burdge, Esq., and can be found on the National Consumer Law Center’s website at https://www.nclc.org/images/pdf/litigation/fee-survey-report-2013-2014.pdf.

The court ruling got to the total amount of $65,277.28 by adding the reasonable costs of litigation to the total hourly amounts awarded to Jared M. Hartman at $349.00 per hour and Babak Semnar at $425.00 per hour in connection with their prosecution of claims under the Federal and Rosenthal FDCPA and California credit reporting act.

If you or a loved one are concerned about whether your rights have been violated by a debt collector, creditor, bank, or credit reporting agency, please do not hesitate to call us for a free and confidential consultation to discuss whether your case might fall within one of the areas of law that allow us to pursue our attorneys’ fees in a similar manner.

The post WHAT ARE ATTORNEYS’ FEES AND HOW ARE THEY AWARDED? appeared first on Temecula Consumer Attorneys.