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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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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!

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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!

Related Tags: default judgment, federal rule of civil procedure 55, frcp 55, credit reporting violations, california credit reporting, 1785.25, inaccurate credit report, credit report attorney, FDCPA, fair debt collection practices, debt harassment, debt collection harassment, California debt harassment attorney, San Diego debt harassment attorney, Riverside debt harassment attorney, Orange county debt harassment attorney, consumer rights, consumer protection, consumer attorney
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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.

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STUDENT LOAN GIANT NAVIENT SOLUTIONS, INC. IS ONCE AGAIN IN BOILING HOT WATER OVER ITS DEBT COLLECTION PRACTICES.

  • Jared Hartman, Esq.
  • Posted on April 17th, 2016

 

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

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NAVIENT CORP UNDER SCRUTINY ABOUT POSSIBLY CHEATING MILITARY SERVICEMEMBERS ON FEDERAL STUDENT LOANS

  • Jared Hartman, Esq.
  • Posted on March 23, 2016

 

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.

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KNOWLEDGE IS POWER – KNOW YOUR RIGHTS

  • Jared Hartman, Esq.
  • Posted on February 25, 2016

 

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.

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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.

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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.