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

  • Jared Hartman, Esq.
  • Posted on January 10, 2017

On January 9, 2018, Judge Scott of the San Joaquin Superior Court granted our Motion to Vacate Default Judgment and Dismiss the case based upon faulty substitute service. Ordinarily, California law permits default judgments based upon substitute service, but only if the substitute service requirements have been strictly followed. This means the party attempting to serve the complaint and summons must exercise reasonable diligence to achieve personal service, and can only leave the complaint and summons with a competent adult residing at your place of residence or usual address of mailing, or a person reasonably in charge of your place of business. They must then follow up by mailing the complaint and summons to your usual place of mailing.

In our case, Kenosian & Miele sued our client for a credit card debt that the client contends was never his. The bank even confirmed via telephone that they had never issued a credit card in his name or under his SSN. It is still not clear how this lawsuit came named our client. However, Kenosian & Miele attempted substitute service at a residence where he had not resided for years, even though all of the client’s public records proved that he resided in a completely different city. The client did not discover the problem until Kenosian & Miele had already obtained a default judgment and executed a levy upon the client’s bank account.

Because Kenosian & Miele failed to provide sufficient documentation to support their argument that they believed he actually resided at the address where they attempted substitute service, even though they clearly had access to the client’s true address of residency through public records, our motion to vacate the default judgment was granted for lack of proper service. On top of that, because Kenosian & Miele had failed to accomplish valid service within 3 years of filing the complaint in 2012, the case was required to be dismissed pursuant to Dill v Berquist Construction Co., 24 Cal. App. 4th 1426, 1433 and CCP 583.210(a).

If you have been served with a complaint and summons, it is vitally important that you must act on it quickly, because California law provides very strict deadlines and requirements for responding to the complaint. If you have discovered that a judgment has been entered against you already, then it is also vitally important that you must act quickly in seeking to set it aside, because again, California law provides very strict deadlines and requirements for seeking the set aside. It is best to have a lawyer help you through this process, because debt buyers and debt collection law firms usually attempt to take advantage of your lack of experience and knowledge in trying to represent yourself.

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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.

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MORTGAGE LOAN BEING SERVICED BY ROUNDPOINT MORTGAGE SERVICING CORPORATION?

  • Jared Hartman, Esq.
  • Posted on August 24, 2015

 

The law firm of Semnar & Hartman, LLP are presently investigating possible consumer rights violations being committed by RoundPoint Mortgage Servicing Corporation in connection with its efforts to collect monthly mortgage payments from California home owners. Such possible violations may include the following:

  1. Force-placing into Escrow amounts for anticipated taxes in the future even though the homeowner has a waiver of such items to be paid through Escrow;
  2. Failing to send monthly collection statements informing the homeowner of exactly how much RoundPoint is collecting from the homeowner;
  3. Sending monthly collection statements that indicate RoundPoint is collecting Escrow items for “taxes and insurance” when in reality they are only attempting to collect either taxes or insurance, but not both;
  4. Furnishing inaccurate information to the consumer credit reporting agencies by claiming a homeowner is in default on the mortgage payments when in reality the homeowner has always paid his or her monthly obligation;
  5. Threatening foreclosure if the homeowner does not call to make payment arrangements for amounts that the homeowner does not actually owe.

If you or a loved one have a home mortgage loan being serviced by RoundPoint, please do not hesitate to call us for a free and confidential consultation to discuss your rights as a homeowner and whether those rights may have been violated.

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

  • Jared Hartman, Esq.
  • Posted on May 2nd, 2015

 

Have you or a loved on been subjected to debt collection efforts by Nationstar Mortgage, LLC upon a mortgage debt that is not owed? The firm of Semnar & Hartman, LLP has recently filed suit against Nationstar Mortgage, LLC and Bank of America, N.A. alleging that Bank of America retained the services of Nationstar Mortgage, LLC to collect upon a defaulted mortgage that was settled by way of short-sale. After foreclosure proceedings had been initiated, but before foreclosure occurred, the consumers completed a short-sale of the home. Bank of America signed documents that specifically states the outstanding debt had been settled and that the consumers were released from any further obligation for owing the difference.

Unfortunately, however, approximately one year after the short-sale was completed, Nationstar Mortgage, LLC began sending letters to the consumers attempting to collect upon the amount that had been forgiven. The consumers informed Nationstar that the debt had been settled by way of short-sale, and Nationstar simply told them to ignore the letters. However, Nationstar continued to send collection letters and even began to threaten foreclosure upon the same home that the consumers had already sold. Even worse for the consumers, Nationstar had also began reporting upon their credit reports the false information that they were still in default on the loan and the loan had been charged off as a bad debt. This false reporting led to the consumers being denied new lines of credit and has prevented them from moving on with their lives after such a difficult period. The Complaint has been filed in the Central District of California and can be viewed by clicking here.

If you or a loved one is being harassed by Nationstar for a debt that is not owed, or if being harassed even upon a debt that is legitimately owed, please do not hesitate to contact us for a free and confidential consultation as to whether your rights have been violated.

Related Tags: debt collection harassment, rosenthal fair debt collection, san diego debt harassment attorney, california debt harassment attorney, orange county debt harassment attorney, riverside debt harassment attorney​, FDCPA, FCRA, Rosenthal Act, Nationstar Mortgage harassment, Bank of America harassment, Nationstar debt collection harassment, Bank of America debt collection harassment
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MEDICAL DEBT COLLECTIONS TRYING TO COLLECT ON A BILL SUBJECT TO WORKER’S COMPENSATION

  • Jared Hartman, Esq.
  • Posted on April 10th, 2015

 

Suffering a significant injury while on the job can be very traumatizing and life altering. Not being able to perform the job that one was once able to perform can cause a serious blow to one’s emotional stability and self-confidence, and the lack of ability to provide financial stability to one’s family is severely unfortunate. Insult to such injury is added when medical debt collectors fail to submit their billing liens to the workers’ compensation board and persist in attempting to collect from the injured employee directly. Thankfully, the law provides protections against such unfair debt collection tactics.

California Labor Code Sections 4600, 5300, 5304, and 5955 provide the basis that the worker’s compensation board has exclusive jurisdiction to handle medical debts that are the subject of a workers’ compensation claim. In order for the medical provider and/or debt collector to seek reimbursement for such services, they must submit a lien to the workers’ compensation board so that the board can determine the appropriate amount of pay for the employer and/or employer’s insurance company to provide. If the medical provider and/or debt collector is not satisfied with the board’s ruling, then their sole remedy is to file a petition for reconsideration pursuant to California Labor Code § 5900 and then appellate review pursuant to California Labor Code § 5950.

However, California Labor Code § 3751(b) provides that medical providers shall not collect money directly from their patients for services to cure or relieve the effect of the injury for which a claim form, pursuant to Cal. Lab. Code § 5401, was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the patient. Any medical provider who violates Cal. Lab. Code § 3751(b) shall be liable for three times the amount unlawfully collected, plus reasonable attorney’s fees and costs.

Semnar & Hartman, LLP regularly ties such unlawful debt collection tactics into a claim for either or both of the Federal or Rosenthal Fair Debt Collection Practices Acts, since those laws prohibit any attempt to collect an unauthorized amount in connection with consumer debts. If you or a loved one are proceeding through a workers’ compensation board claim, but are still receiving debt collection bills and/or phone calls, please do not hesitate to contact us as soon as possible for a free, confidential consultation about your rights.

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MEMBERS OF THE ARMED FORCES: HAD YOUR PROPERTY SOLD, FORCLOSED, OR REPOSSED DURING DEPLOYMENT? YOUR RIGHTS MAY HAVE BEEN VIOLATED!

  • Jared Hartman, Esq.
  • Posted on February 20, 2015

 

The U.S. Servicemembers Civil Relief Act at 50 U.S.C.S Appx. §537 prohibits anyone from enforcing a lien sale or executing a repossession lien—without first obtaining a court order—upon the property or effects of members of the armed forces during deployment and up to 90 days after return from service. The goal for such a prohibition is so that the servicemember can dutifully serve his or her country with honor, and without having to carry the stress and anxiety over whether their property back home will be safe and secure. A violation of this prohibition is a misdemeanor crime, and can be punishable by up to one year in custody and fines. Additionally, a servicemember whose rights have been violated can pursue a civil lawsuit against the violator and recover damages sustained as a result of the violation in addition to attorneys’ fees and costs of pursuing litigation.

A lawsuit recently filed by Semnar & Hartman, LLP alleges that a vehicle auto-body shop called Pro Custom in Oceanside, California violated this very prohibition. The Complaint can be read by clicking HERE

This lawsuit alleges that Pro Custom promised to hold the servicemember’s car during his period of deployment and promised to safely store the vehicle until his return from deployment. The servicemember then left for approximately 7 months of deployment only to find out upon his return that the vehicle had been sold through a non-judicial lien sale. The lawsuit alleges that Pro Custom sold the vehicle to recover only $2,200.00 for services, and even though the vehicle was worth approximately $14,000.00 the servicemember has not been provided with any finances that would make up the difference between the amount Pro Custom sold the vehicle for and what Pro Custom claimed was owed to them. Even after the member inquired as to why Pro Custom sold the vehicle after they promised to safely hold it upon his return, Pro Custom claimed he abandoned the vehicle and still failed to provide him with any proceeds from the sale.

The lawsuit further alleges that Pro Custom has been continuing to take out of the servicemember’s bi-weekly paychecks money for services performed on credit prior to the member’s deployment, even though Pro Custom seized the property when they sold the vehicle and has recovered any finances alleged to be owed to them for the services on credit by keeping all of the proceeds of the sale. The lawsuit alleges that this conduct is a violation of the California Rosenthal Fair Debt Collection Practices Act, for unfair and oppressive conduct, misrepresentations and false statements as to what Pro Custom is owed, and for taking action that cannot legally be taken.

The lawsuit is seeking actual damages for the servicemember for the loss of the value of the vehicle, loss of use of the vehicle, emotional distress and mental anguish for not having a vehicle for the past 10 months and having to beg for rides from friends to attend his physical therapy sessions for an injury sustained during deployment, recovery of all monies taken by Pro Custom for the services previously performed on credit, recovery of all monies the member has paid to the vehicle financier since his return from deployment, as well as attorneys’ fees and costs. Moreover, because Pro Custom regularly advertises to military members and claims to “Support our Troops”, this lawsuit is also seeking punitive damages as a means for punishing them for their egregious unlawful conduct and to prevent future abuses against other military members.

If you or a loved one are deployed or about to be deployed, please know that you have rights when it comes to your property. Please do not hesitate to contact us for a free and confidential consultation to discuss your rights and whether your rights may have been violated.