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Is Your Social Security Number Compromised? Then, “Freeze” It!
The National Do Not Call Registry
Improving Your Credit Report
Consumer Rights under the Fair Debt Collection Practices Act (FDCPA)
This Call is Being Recorded
Delaware is only #2!
Playing the odds
Medical Debt
Help! My wages are being garnished
An Inaccurate Credit Report Can Cost You


Is Your Social Security Number Compromised? Then, “Freeze” It!

Identity theft is among the fastest growing crimes in the United States. In 2015 alone, more than 10 million Americans had their identities stolen and their financial information compromised.

Hackers have been successful in targeting financial institutions, retail companies from Target to Home Depot, and even government agencies. They have stolen sensitive credit card data, Social Security numbers and banking accounts in large data breaches.

After a data breach, hackers have names, Social Security numbers, addresses and credit information. That is all identity thieves need to open new lines of credit, apply for loans and create a financial nightmare for unsuspecting consumers.

A Simple Way to Protect Yourself

One of the simplest and most effective ways to protect yourself from the negative effects of identity theft is to place a security or credit freeze on all of your credit reports.  That way crooks and lawbreakers can’t use your credit file to get new credit in your name.  Further, if someone reports any new information to a creditor (such as a change of address or phone number), you are notified.

Initiating a Security Freeze on Your Credit File

A security freeze can be a cost-effective identity theft prevention tool. Freezing your credit file prevents access to your credit accounts and your entire credit file.

Under a security freeze, no one is able to open a new account, get a loan or sign up for a new credit card in your name or Social Security number. In effect, all inquiries into your credit file will be prevented.   Freezing your credit file doesn’t affect your credit rating or existing credit lines at all.

Your credit report is “frozen” and you are given a PIN that you can use to temporarily unfreeze your report when you are applying for new credit.  (There is a cost for unfreezing, however, so make sure you know the costs going in.)

Credit Freezes are for Everyone - Don’t Wait Until You are a Victim, Act Now

Security freezes have been available for identity theft victims for a long, time, but now are available for everyone.  A credit freeze simply needs to be removed a few days before you apply for credit. For individuals who apply for new credit on a rare basis, freezing the credit file can help prevent identity theft.

Victims of Identity Theft - Fraud Alerts & Fraud Reports

Under the Fair Credit Reporting Act (FCRA), every American has some protective rights when they become a victim of identity theft. It is a good idea to place fraud alerts on your credit reports with all three of the consumer reporting agencies.

Fraud alerts inform anyone accessing your credit that you may be a victim of identity theft and they should be cautious about requests for credit coming from your Social Security number. Once you initiate a fraud alert, the credit reporting agencies will provide a free credit report, place a fraud alert on all three consumer reporting agencies and your information will be removed from all pre-approved credit card and loan offers for two years.

Take Action Against Debt Collectors

If you become the victim of identity theft, it is possible that debt collectors may erroneously pursue you. In some cases, they may violate the Fair Debt Collection Practices Act (FDCPA). Unethical and illegal tactics are prohibited under the FDCPA.

You have the right to be free of harassment and intimidation during the collection of a debt. If you believe that your rights have been violated, contact the Law Office of Mary Higgins to schedule a free consultation. 

To freeze your credit reports, contact all of the nationwide credit and consumer reporting agencies:

Equifax: 1-800-349-9960

       Experian: 1-888-397-3742     

       TransUnion: 1-888-909-8872

 

Be prepared to provide proof of your identity and your Social Security number. Most credit freezes require a nominal fee of $5 - $20. After your security freeze is approved, the agencies will provide you with a password that you can use to lift the security freeze at a later date.

To learn more about ways to protect yourself or to take legal action, call 302-894-4357 or email Mary Higgins at mary.higgins@letsbelegal.com today.



The National Do Not Call Registry

The Telephone Consumer Protection Act (TCPA) protects consumers from unsolicited telemarketing calls.  (See blog titled "Telephone Consumer Protection Act” for a detailed discussion of the Act.)  The Federal Trade Commission (FTC) has issued rules and regulations to implement the TCPA, and works with the Federal Communications Commission (FCC) to enforce them. 

The TCPA established the National Do Not Call registry in June 2003, to further aide its mission of protecting consumers from telephone harassment, illegal scams, and predators.  The registry is managed by the FTC and enforced by the FCC in cooperation with state law enforcement officials. 

You can protect yourself from unwanted calls by registering your phone number on the national do-not-call registry by going to www.donotcall.gov.  To register by telephone, consumers may call 1-888-382-1222: for TTY call 1-866-290-4236.  Note that if you are registering by phone, you must call from the phone number you wish to register.           

The National Do Not Call registry allows consumers to limit the telemarketing calls they receive by putting their phone number(s) on the registry.  (A consumer can only place his or her own personal phone number on the registry; up to 3 phone numbers, including cell phone numbers, can be registered at one time.)  Once a phone number is registered, telemarketers covered by the registry have up to 31 days from the date of the registration to cease calling the consumer.  The phone numbers on the registry are shared only with telemarketers who are required to search it every 31 days to ensure that they do not call consumers who have been added to the registry that month, and with law enforcement officials charged with enforcing the registry.  For a more complete explanation of the privacy policy with respect to the registry, go to: www.ftc.gov/FTC/privacy.shtm.           

Once a consumer puts his or her phone number on the registry, most unsolicited marketing and advertising calls will stop, but there are some exceptions:  (1) calls from or on behalf of political organizations; (2) calls from charities and non-profits; (3) calls from telephone surveyors, and (4) advertisers who have your express written consent to call you.  See the TCPA blog for details on the express written consent.   If a caller tells you they are allowed to call you, because they have an “established business relationship” with you, they are wrong!  The established business relationship exception to the registry was eliminated as of October 2013; therefore, telemarketers covered by the registry must have a consumer's express written consent to call them or they are in violation of the registry.  Once a phone number is registered, it remains off-limits to telemarketers unless the consumer requests that it be taken off the registry, or the phone number is disconnected or re-assigned.

What happens if a consumer has registered their phone number with the National Do Not Call registry, but they are still receiving calls from telemarketers?  

Penalties for violation of the registry can be substantial at $500-$1000 per call (and treble damages in outrageous cases).  The consumer should first verify that their phone number is indeed on the registry.  If it is, and you think your rights may have been violated under the Telephone Consumer Protection Act, call Mary Higgins, Esquire today at 302-894-4357, or email her at info@letsbelegal.com(This article is for informational purposes only and should not be relied upon for legal advice.  Your case should be reviewed by an attorney to determine the proper legal advice for your situation.)

Posted on April 18, 2015



Improving Your Credit Report

Many people underestimate the effect of negative information on their credit report.  Clearing negative information is worth your time and effort because it can save money in interest on loans and credit cards.  Below are five ways in which to get bad debt information removed from your credit report.

Pay for the delete: offer 25% of the total debt in satisfaction of the debt.  Remember that most debt collection agencies pay the original creditor pennies on the dollar for the debts they collect, so collecting 25% of the total debt still gives the agency a huge profit.  As with the second method below, anytime you pay any amount on the debt and it is considered to be paid in full, request that any information about the debt be removed from your credit report.  If the collection agency is unable or unwilling to take this action, then ask for the contact information for the original creditor.  Be sure to get confirmation from the collection agency or the original creditor that a Universal Data Form has been submitted to the three major credit reporting agencies.

 Settle the debt:  this method is similar to paying for the delete, but involves more active negotiation.  As a rule, only unsecured debts such as medical bills, school loans, and personal credit cards can be settled.  Secured debts, such as car loans and mortgage notes, do not settle since a default on payments results in a seizure of the asset (which is the security).  The best way to negotiate a settlement is to put all terms in writing, including that the debt be removed from your credit report.  If possible, make one lump sum rather than payments, since payments could arguably re-start the statute of limitations on the debt.  Do not pay any fees, penalties or interest on the debt, since these are illegal under the Fair Debt Collection Practices Act (FDCPA).

Debt Validation: under the FDCPA, a debt collection agency must provide proof upon request that the debt it is trying to collect is valid.  Note that debt validation cannot be used with original creditors; the FDCPA does not apply to them.  Debt validation involves the collection agency providing at least one of the following items of proof upon request: (1) proof that it owns or has been assigned the debt; (2) a copy of a statement from the original creditor; (3) a copy of original signed loan agreement or credit card application; (4) a copy of the cancelled check from you to the original creditor.  If the debt collection agency cannot validate the debt, it must cease collection activities.  Many collection agencies are unable to validate debts, so this is a highly effective way of clearing your debt and your credit report.  Note that a debt must be within its statute of limitations or it cannot be collected.

Dispute with original creditor: if you believe that the debt information on your credit report is inaccurate, ask the creditor for an investigation pursuant to the Fair Credit Reporting Act.  If the creditor cannot prove the accuracy of the debt history--e.g. late payments, skipped payments, etc--then the debt must be removed from your credit report.

Dispute with credit bureau: similar to the dispute process above, if the credit bureau cannot verify the negative information on your credit report within the time allowed by law, then they must remove it.

If you have a dispute with a debt collection agency regarding the validity or amount of a debt being collected, fill out the FREE CASE EVALUATION FORM at letsbelegal.com, and contact Mary Higgins, Esquire at info@letsbelegal.com(This article is for informational purposes only and should not be relied upon for legal advice.  Your case should be reviewed by an attorney to determine the proper legal advice for your situation.)

Posted on May 18, 2015



Consumer Rights under the Fair Debt Collection Practices Act (FDCPA)

Many of us have debt: credit card debt, a car loan, a mortgage or medical bills.  Many of us know what it is like to fall behind on payments toward those debts.  But what many of us do not know is that we have rights under the Fair Debt Collection Practices Act (FDCPA) that can protect us from harassing, threatening, and illegal behavior by debt collectors.  The FDCPA was enacted in 1977, and the Federal Trade Commission together with the Consumer Financial Protection Bureau (CFPB) work to enforce and implement its provisions.  The Act applies to consumer debt--personal credit cards, student loans, and medical debts.  (Business debts are not subject to the FDCPA.)

Before discussing the basic protections provided by the FDCPA, it is important to have a clear understanding of what debt collectors are and how they function.  Debt collectors are companies hired on a commission basis by credit card issuers and banks to collect on past-due accounts.  Debt collectors may also purchase bad credit card and other loan debt outright from financial institutions and other lenders.  These debt buyers own the debt, and the right to collect the full amount of the outstanding debt.

The initial contact between a collector and a debtor must include what is known as a "mini-Miranda" disclosure (alluding to the rights told to suspects when arrested, known as Miranda rights).  Any oral or written communication must include language that the “communication is an attempt to collect a debt and any information obtained will be used for that purpose” (i.e. the “mini-Miranda”.)   All contact after the first contact must disclose that the next call or letter is coming from a “debt collector”.  This is true, in most cases, even if the letter was sent by an attorney.  An attorney must still disclose when they are acting as a debt collector.

Within 5 days of initial contact, a debt collector must provide in writing: (1) the amount of the debt; (2) the name of the creditor; (3) a notice that unless the consumer disputes the validity of the debt within 30 days, the debt will be considered valid; and (4) that the consumer can request verification.  All collection activities must cease during the validation process.  The collector cannot take any action during the first 30 days that overshadows the consumer’s right to dispute the debt.  If the debt collector does not provide the original creditor’s identity, the collection must cease.

After the initial contact between the debt collector and the debtor, the FDCPA continues to protect the debtor from overreaching, harassing, and illegal collection activities.  The behaviors by debt collectors most complained about are listed below:

    1.  Debt collector (DC) calling repeatedly to annoy and harass

    2.  DC trying to collect more than the debt owed

    3.  Falsely threatens illegal or unintended act

    4.  Failure to send written notice of debt

    5.  DC threatens dire consequences (arrest, property seizure)

    6.  DC fails to identify as debt collector

    7.  DC calls at work after being told not to

    8.  DC uses abusive and/or obscene language on phone

    9.  The debt is revealed to a third party

    10. DC fails to verify disputed debt

    11. DC collects unauthorized fees, interest, or expenses in addition to debt

    12. Calls before 8am and after 9pm

    13. Ignoring cease and desist communications

    14. Repeated calls to third party

    15. Threats of violence

Excerpt annual FTC report to CFPB, Feb. 21, 2014, Appendix C.

Several of the practices of debt collectors receiving the most complaints have to do with confidentiality.  Debts are private matters; not only is revelation to third parties a violation of the FDCPA, but communications that identify the sender as a debt collector or allow the contents to be read (as with postcards) are also violations.  Another important fact for debtors to know is that debts that are beyond their statute of limitations cannot be collected.

If you think that a debt collector has violated the FDCPA in attempting to collect a debt from you, fill out our FREE CASE EVALUATION FORM at www.letsbelegal.com Do not hesitate to contact Mary Higgins, Esquire.  You have only one year from the date the violation occurred to sue.  You can recover $1,000, plus damages for the actual losses incurred, court costs and your attorney fees.  (This article is for informational purposes only and should not be relied upon for legal advice.  Your case should be reviewed by an attorney to determine the proper legal advice for your situation.)

Posted on June 18, 2015



This Call is Being Recorded

So you’re getting harassing calls from a debt collector. You can’t believe some of the things he’s saying, and you’re not sure anyone else will believe them either. What should you do? Should you secretly record the calls? If you file a federal lawsuit for violations of the Fair Debt Collection Practices Act (FDCPA), that recording is powerful evidence of the harassment you have suffered.

Although federal law does not require you to get the consent of the offending caller before you record his outrageous call, some states do. “Two-party consent” states allow you to record conversations only after you have obtained the consent of both parties (or all parties, if there are more than two). Laws in “one-party consent” states like Delaware follow the federal law and permit you to record conversations within the state if you are a participant in the conversation or receive permission from one of the participants. But be careful, because it can be difficult to know whether the call is entirely within the state. If the other person is in a “two-party consent” state, you may be violating the law of that other state. And if the other person is on a cell phone, you may not be able to tell where he is.

Take the case of Saxon Mortgage Services. Saxon employees in Texas made calls to customers and recorded those calls in Texas. According to Texas law, that was allowed because Texas is a one-party consent state and the Saxon employees who were making the calls consented to the recording. But not all of the calls stayed in Texas. Some of them were answered in other states including California, and California is a two-party consent state. Saxon hadn’t gotten consent from their California customers, like Jo Ann Zephyr. Zephyr led a class-action lawsuit against Saxon, seeking $5,000 for each of the calls Saxon made to cellphones in California. Not only is it a criminal offense in California to secretly record private conversations and cellular or cordless phone conversations without the consent of all parties, but California also allows the aggrieved parties to sue for $5,000 for each offense – even if the calls originated and were recorded out-of-state, in a one-party consent state.

So what can you do about those harassing calls? Why not just get the consent of that annoying caller?

You’ve probably given your consent to be taped many times. You’ve heard the pre-recorded warning that goes something like this: “All calls are recorded for quality assurance purposes.” If you continue with the call after you’ve received this warning, you have consented to be recorded. You don’t have to use the word “consent;” your consent is implied by your continued participation after receiving that warning.

So go ahead and issue your own warning. But make it clear that you are taping the call, not merely that you may be taping or are capable of taping the call. If the caller continues with the call, he has consented to be taped. If not, he will hang up and the harassing call is over.  

Posted on January 13, 2016



Delaware is only #2!

In a ranking of the 50 states plus Washington, D.C., Delaware has the second highest number of consumer financial complaints per capita registered with the Consumer Financial Protection Bureau. Delaware is second only to Washington, D.C. in this regrettable ranking.

The biggest complaint among consumers has to do with debt collection. For 26 months in a row, complaints about debt collectors top the list. In the last month reported, debt collection complaints comprised nearly one-third of all complaints to the CFPB. Among military service members, debt collection complaints accounts for nearly half of all complaints. And the biggest debt collection complaint is that the debt is not even owed. It can be that the debt was paid, it was the result of identity theft or belongs to someone else, or even that it was already discharged in bankruptcy.   In many cases, consumers claim that the amount of the underlying debt is inaccurate or unfair, according to the CFPB. Sometimes the debt is so old that it cannot even be legally enforced anymore.

How can this be? Often the debt collectors are large corporations that buy up overdue accounts from other companies who have already written off the debt. These corporations have bought the debt for pennies on the dollar and now will try to collect the entire debt from the consumers. In a recent case, the CFPB fined one of the largest debt-buying company in the country $8 million for aggressively pursuing consumers with misleading statements about debts that were potentially inaccurate, lacking documentation or unenforceable. In another case, the CFPB took action against a large debt collection company for running a “phantom debt” collection scheme. “Phantom debt” is debt that consumers do not actually owe or that is not owed to those who are attempting to collect it. Yet there are companies out there that will use harassment and deception to try to collect this “phantom debt.”

If you get a call asking you to pay on an overdue debt, you may not even recognize the name of the company because it’s not someone you have dealt with in the past. The debt may have been legitimately sold to a reputable collector, or it may be “phantom debt.” So how do you know whether you really owe what they claim?

The Fair Debt Collection Practices Act gives consumers certain rights when dealing with debt collectors, including the right to have the debt verified. Here’s what you need to know. You have 30 days from the   time the debt collector first contacts you to request verification of the debt. You must make your request in writing. You should notify the debt collector that (1) you dispute the debt or some portion of the debt and (2) you want to know the name and address of the original creditor. Once you make this request in writing, the law requires the debt collector to cease all collection activity until it provides you with the information requested, including verification of the debt or a copy of a judgment against you.

The CFPB was established by Congress 5 years ago in the Dodd-Frank Act, which was enacted as a response to the financial crisis and Wall Street bailouts of 2008. The CFPB is the government agency charged with empowering consumers to take more control over their financial lives through promoting transparency and enforcing financial regulations and rules for financial institutions.

If you have asked for verification from a debt collector and the debt collector has continued to collect on the debt without providing verification, or if they have provided you with wrong verification information, call Mary Higgins, Esq. at 302-894-HELP (4357).   We may be able to help you resolve the matter, or seek an award for you from the Courts.   Each situation is different, and this article is not individual legal advice. You must consult with an attorney for your own situation.

Posted on January 26, 2016



Playing the odds

When you’re being pursued by a debt collector, sometimes it feels like the odds are against you. Even when you know that the debt is not yours. You keep getting calls. You’ve tried to explain, but they keep calling. And sending letters. And now they’ve filed a lawsuit against you. What can you, one little person, do to defend yourself against a billion-dollar industry with tens of thousands of employees and complex algorithms and computer programs?

The most important thing for you to do is answer the lawsuit in court. It can be intimidating to be sued and to be served with a summons and complaint. But don’t ignore it. Just by filing your answer within the time limit set by the court, you can change the odds to your favor.

Debt collection is a billion-dollar industry generating huge profits for companies that buy up bad debt and then try to collect on it. Debt-buyers typically pay between 3 and 8 cents on the dollar for batches of debt that credit card companies, banks and others have written off. In some ways, it’s just a numbers game. And they play the odds. So if they can collect more than 8 percent, they make a profit. If they can collect 100 percent from you, they’ve just made a huge profit.

And one of the easiest ways for debt collectors to do that is to file a lawsuit and get a default judgment. When you are sued, the general rule is that if you just ignore the lawsuit and don’t answer it in court by the date set, your failure to answer can lead to a default judgment against you for the entire amount of the lawsuit. And the plaintiff doesn’t have to prove much beyond that he sued you and you defaulted, or failed to answer. Debt-buyers have made fortunes with this strategy. In one New York study, it was found that third-party debt collectors got default judgment in 81 percent of the cases they filed.   If you don’t answer a lawsuit, you make it easy for them to get a judgment. Then they may be able to garnish your wages or seize your property. And your chances of eliminating that judgment are close to zero.

Your best bet is to stop them from getting the default judgment in the first place. And to do that, you must answer the complaint. A good consumer lawyer will help you answer the complaint and assert all of your defenses. Now the debt collector can’t just claim you owe him money, he must prove it in court.

When debt buyers purchase big batches of debt for pennies on the dollar, they get lists of names and addresses, account numbers and amounts. And they aggressively pursue consumers on those lists. They’ve got phone banks and automatic dialers and lawyers and collectors.

But there’s one thing they likely don’t have: the documents to prove the debt exists. Fewer than 1 in 8 accounts purchased by debt buyers come with documentation of the debt, according to a report by the Federal Trade Commission. That gives them less than a 12 percent chance that they can prove that debt to a court. The other 88 percent chance is with the consumer. So now the odds have changed.

If you need help, contact the Law Office of Mary Higgins at 302-894-HELP (4357) – www.letsbelegal.com.

Posted on February 19, 2016



Medical Debt

According to the Consumer Financial Protection Bureau, medical debt is far and away the number one type of debt reported on consumer credit reports.  More than half of all debts in collection are medical debts.  An estimated 43 million consumers have at least one medical debt in collection.  Nearly one in five Americans will be contacted by a medical debt collector.

So, it's important to remember that federal laws provide you with the same protections from medical debt collectors as for any other kind of debt collector.   In fact, under a recent settlement with the office of the New York State Attorney General, the three major credit bureaus (Experian, Trans Union and Equifax) agreed to wait six (6) months before reporting medical debts on credit reports in order to give consumers time to resolve billing and insurance disputes.  They have also agreed to remove delinquent medical debts from credit reports once those bills have been paid by insurance.  If a credit bureau continues to report delinquent medical debt after it has been paid by the insurer (and after you have disputed it with the credit bureau), they have violated the law.

Medical debt occurs at all ages and in every segment of the socioeconomic strata, including many people who are actually insured by employer-sponsored health plans.  In fact, medical debts are the number one (1) reason people file for bankruptcy.  Medical debts can impact your credit-worthiness and your credit score, making it harder for you to obtain a loan, rent an apartment or even get a job. 

Why are so many medical bills in collection?  Well, one explanation is that medical bills can be confusing.  A single inpatient stay at a hospital may generate several different bills, one from the hospital, one from the surgeon, one from the anesthesiologist, one from the laboratory, one from the pharmacy, etc.  It may be easy for consumers to think that all of their medical bills have been paid, while one or more are actually still outstanding.  Add to that the delay and confusion over whether (or how much) of a bill is covered by insurance, and the fact that hospitalization and medical issues can leave one physically and emotionally drained.  

Unlike other kinds of debt, the data suggests that most medical bills may be outstanding because of mistakes and disputes, rather than an inability to pay them.  A recent study showed billing mistakes in almost half of the Medicare insurance claims that were reviewed.  Moreover, half of the medical bills in collection are for $207 or less (smaller on average than many other types of debt), indicating that consumers may be able to pay the bills, but really don't believe that they owe them.  

Sadly many times, it's seniors who are the subject of hounding over medical debts.  Seniors often complain that collectors have already started calling while they're still trying to correct billing mistakes or waiting for providers and insurers to resolve disputes, according to the CFPB. The Bureau reports that seniors complain that collectors are attempting to collect on bills already covered by insurance.   It can be frustrating and confusing, and the debt collector’s activity may be illegal.  

Ignoring these debts is the worst thing that you can do (because you think someone will discover it's a mistake).  Chances are, it will just continue in the collection juggernaut.   Debt collectors will often sue people for the unpaid debt.  They count on people ignoring the lawsuit so that they can easily get a default judgment.  Once a judgment is in place, it is nearly impossible to remove and the debt collector may now start collecting that judgment by attaching your wages or putting a lien on your property. 

It’s important to remember that even though your medical bills might seem far different from your other bills, they are still considered consumer debts which fall under the Fair Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA).  These laws protect you from unscrupulous behavior. 

Debt collectors cannot misrepresent the amount of the debt.  They cannot call you before 8 a.m. or after 9 p.m. or any other time you tell them is inconvenient.  They can't use or threaten violence, use obscene or abusive language, threaten harm to your property or reputation, make false or misleading statements, or send you documents that look like they come from a court.  They can't call you at work if they know you're not allowed to receive their calls there.  They can't broadcast your debt to others, or tell you that you are going to jail if you don’t pay.  They have to give you certain information about the debt and tell you how you can dispute the debt or seek verification.  If they violate these rules, you may be able to sue them for monetary damages.  

If you need help, contact the Law Office of Mary Higgins at 302-894-HELP (4357) – www.letsbelegal.com

Posted on March 24, 2016



Help! My wages are being garnished

“Help! My wages are being garnished. I don’t know how it happened. How can I get it stopped?” Can it go on for years? WE STOPPED IT!

WE CAN ASSIST.  We often hear someone say that their wages are being garnished and they don't know how it happened.  Sometimes, there’s nothing we can do.  You may have lost most of your ability to dispute the debt once there is a Judgment against you.  If you don’t remember much about how it came to be, it’s probably because the creditor got a default judgment against you.  Debt collectors love default judgment, because it’s an easy win for them.  It happens when they file a lawsuit against you, and you just ignore it (don't do that) – hoping it will go away or thinking you’ll deal with it later.  But if you don’t answer the lawsuit, you’ve just defaulted and the creditor can get a default judgment against you. 

The amounts – and your responsibility to pay them – are now set and the debt collector will have the assistance of the courts to collect those amounts through execution of that judgment – wage attachment, lien on your property, sheriff sale. 

It is difficult to open up a default judgment, but it’s not impossible.  Once that default judgment has been entered, the rule is that you have forfeited the right to present the defenses you may have had to that alleged debt.  And the older the judgment, the harder it is to attack it.  But, as with most rules, there are some exceptions.

Debtors are often surprised to see the amount of a default judgment.  It can be many times greater than the amount that they remember owing to the creditor.  That is often because added to the original amount of the debt, the judgment includes attorney’s fees and exorbitant interest, as high as 29.99%.     A creditor is allowed to include these additional amounts in the default judgment, but only if it can prove that your original agreement called for you to pay these additional costs. 

And in Delaware, as in many states, the creditor has to show the court documentation to prove that it is entitled to attorney’s fees and a high rate of interest. If the creditor has gotten a default judgment without showing these documents, this is one of the exceptions where you may be able to go back and alter the default judgment.  Many times, the debt has been purchased at pennies on the dollar and the new owner of the debt – the one pursuing you in court – does not have the original documents and doesn’t really know whether you agreed to pay attorney’s fees and exorbitant interest.

So, for instance, where a credit card company sued our client recover a $13,000 bill and the debtor failed to answer the suit, the credit card company got a judgment for the $13,000 plus over $3,000 in attorney’s fees and 18% interest. Then the company got a wage garnishment and over 6 years collected more than $27,000 and was still collecting.  It could have gone on for years with thousands more dollars accruing, but our client came to us with her problem.  In this case, the credit card company overreached.  They cut some corners and got their default judgment without presenting any evidence that the debtor was required to pay attorney’s fees and 18% interest. 

HOW WE HELPED:  Here, we asked the judge to go back 6 years and look again at the default judgment.  He agreed and saw that the debt collector had not followed the court’s rules and had not presented the necessary documents.  The judge removed the attorney’s fees and 18% interest from the judgment.  The debtor still had to pay the legal rate of interest, but that was only 5.75%. 

THE CLIENT WAS PAID BACK.  When the amounts were recalculated, the Court said that the credit card company had collected too much money.  Not only did it have to stop the wage garnishment, it was actually ordered to pay back to the debtor almost $7,000. 

TAKE ACTION AGAINST DEBT COLLECTORS.  You have the right to be free of harassment and intimidation during the collection of a debt. If you believe that your rights have been violated, contact the Law Office of Mary Higgins to schedule a free consultation.  See our website at letsbelegal.com.

Call Mary Higgins at 302-894-4357 or email today at mary.higgins@letsbelegal.com.

Thank you for reading my post.  I write about consumer debt collection practices (sometimes with a focus on the State of Delaware).  If you would like to read my future posts then please ‘FOLLOW’ on LinkedIn.

Posted on August 30, 2016



An Inaccurate Credit Report Can Cost You

AN INACCURATE CREDIT REPORT CAN COST YOU; We Can Help If A Creditor Will Not Fix Inaccuracies

You may not want to look at your credit report – but you should.  Your credit report can have a huge impact on your life.  It can determine whether you can get a loan for a new car or a house, or even whether a landlord will rent an apartment to you.  You know it can impact what kind of interest rate you get on your credit card, but did you know it can also impact how much your insurance company charges you for car insurance?  But what can you do about it, anyway? An inaccurate report could be costing you money The first thing to consider is whether the report is accurate.  A 2013 study by the Federal Trade Commission found that 1 in 5 consumers has an inaccuracy on her credit report.  What’s more, 1 in 20 have inaccuracies so serious that they may be charged a higher interest rate or be denied loans based on those inaccuracies.  Clearing up those inaccuracies may translate to greater financial security.  The federal Fair Credit Reporting Act (FCRA) can help. Order a free report The FCRA requires each of the three major credit reporting agencies – Equifax, Experian and Trans Union – to supply you with a free copy of your credit report once a year.  Make sure you access the report through the free portal AnnualCreditReport.com.  There are paid services which provide credit reports, so be careful not to enter those sites accidentally and incur fees.  The FTC warns about “imposter” websites that use the word “free” but come with strings attached.  Be careful and use AnnualCreditReport.com.  You will not get your credit score, but you will get an entire report.  Some people prefer to stagger their free reports, getting one from each of the three bureaus in four-month intervals to cover the full year, while others prefer to get all three at once and compare.  File a Dispute If you find an inaccuracy, you have the right to have it corrected.  File a dispute with the credit reporting agency.  Don’t file your dispute directly with your creditor!   Under federal law, the creditor does not have to address your dispute unless you report it to the credit bureaus. Equifax, Experian and Trans Union all have easy, online options for filing a dispute, but they don’t necessarily save the content of your dispute for later use.  A better option is to make your dispute in writing and send it by certified mail.  Be specific as to what is wrong with your report and how it should be corrected, and include any proof you have.  The credit bureau is required to provide your dispute to the “credit furnisher” (i.e., your creditor) who is providing the inaccurate report.  After an investigation, you should get a decision as to whether the report has been corrected. You may be able to file a lawsuit if the report is not corrected Within 30 days, you should receive a response to your dispute.  The best case scenario is that the report is corrected, your credit score is increased and your interest rates go down.  But if the item is not corrected and you are being harmed by it, you may be able to file an FCRA lawsuit against the credit bureau and/or the credit furnisher who reported the incorrect information and refused to correct it.  This is where it may be helpful to have a copy of the written dispute.  One of the consumer protections of the FCRA is that the other side will have to pay your attorney if they lose, plus you may be entitled to up to $1,000, or more if you can prove specific harm.    So go ahead, and take control of your credit report. If you believe that you have a legitimate dispute about information on your credit report, and need help, contact the Law Office of Mary Higgins to schedule a free consultation.  Call Mary Higgins, Esq. at 302-894-4357 – www.letsbelegal.com.      

Posted on July 12, 2017

 



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