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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.

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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.

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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.

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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.

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FEDERAL FAIR TRADE COMMISSION PUBLISHES LIST OF BANNED DEBT COLLECTORS

  • Jared Hartman, Esq.
  • Posted on February 4, 2015

 

The FTC has legal enforcement powers to pursue action against companies that violate the Federal Fair Debt Collection Practices Act (FDCPA) for engaging in conduct that amounts to harassment under the FDCPA. The FTC recently published a list on its website of many debt collectors against whom they have been successful obtaining federal court orders prohibiting them from engaging in further debt collection activities. Read the list here http://www.ftc.gov/enforcement/cases-proceedings/banned-debt-collectors.

Additionally, the FTC website above has a link to view other entities against whom it has pursued enforcement actions, but did not obtain an injunction to prohibit further collection activities.

If you or a loved one have been contacted by any of the people or entities named in that list, then you or the loved one may have been the subject of a scam and should discontinue any further communications with the “debt collector” immediately. You should also contact the FTC to report them, and also contact us to see what your rights may be in seeking recovery by way of private lawsuit.

The FDCPA is designed to protect consumers. There are over 40 ways the FDCPA can be violated. If you or a loved one are being contacted by a debt collector, be sure to keep all letters, regularly check your credit report for inaccuracies, and write a journal about every phone call. See our webpage discussing the FDCPA for more information. Do not hesitate to contact us for a free and confidential consultation to discuss your rights.