Student Loan Judgment of $45,000
I recently had a client find out that there was a judgment from six years ago against him for almost $45,000 on student loans that he was unable to pay after graduating from law school. The lawsuit was improperly served where he had once lived, before he was married. Not only was the summons and complaint not served on the client, the lawsuit was filed in the wrong courthouse and the balances were much higher than they should be. Even though it was a pretty old debt, and some debt collectors will fight to keep a judgment from being set aside, I worked with the client closely to prepare an airtight case, so even the collection law firm agreed to my motion to set aside the judgment and transfer the case. Now, we are in a much better position to negotiate a payment plan that the client can afford, and we can determine the correct loan balance and interest rate that would apply.
Dealing with Harassing Calls
I frequently see cases where the client has been sued, after dealing with months or even years of being harassed on the debt. People need not put up with harassment and abuse. The Fair Debt Collection Practices Act makes harassment illegal and requires the debt collector to pay your legal costs and fees, if you win. Because the FDCPA has a one year statute of limitations, if you are harassed, you must file the case within a year of the harassing calls or other abuse by a debt collector. However, if the same company that harassed you also sues you, you can counter-claim an offset for the harassment, even if for harassment more than a year before.
Automobile Repossession Harassment
I had a client who wanted the finance company to repossess a vehicle she could no longer afford. They were not doing it, for some reason, although she told them to come get it. They were also making her life miserable, by calling her at work so often, it tied up the employer’s phone, which violated company policy and was humiliating. They then sued her for the balance due on the car contract. Because of the harassment and mishandling of the repossession, they had to pay my client her damages, attorney’s fees, and court costs.
Suit dismissed by major bank
I represented someone who was sued by a major credit card bank for over $11,000, after he had moved out of state. The process server stated that he had personally served the client at his mother’s home, which was false, because he lived and worked in another state. A judgment was entered and the client began receiving abusive phone calls about it, so he disputed the debt in writing and proved to the lawyers that he was not served. The lawyers ignored his dispute. The client hired me to help him set aside the judgment. I also filed a counter suit, because they were aware that he was not served, but refused to set aside the judgment. The court set aside the judgment and the bank agreed to dismiss without receiving any money on the client’s credit card account.
Debt collectors buying old debt and suing for a higher balance
There is a multi-billion dollar branch of the financial services industry that buy, sell, and collect bad debts, even unpaid credit card accounts. These companies use the same phone harassment techniques as traditional debt collectors, but they also file lawsuits, if harassing phone calls to you and humiliating calls to your friends, family, and co-workers don’t illegally force your payment. Such companies even exaggerate the amount due in the complaint, which sometimes nets them a bigger settlement with the individual or, if they get a judgment for the false amount, more collections from wage garnishment, bank seizures, and property liens. This disturbed mentality is now backfiring, as it violates the Fair Debt Collection Practices Act and the California Rosenthal FDCPA, both of which provide for damages and attorney’s fees. For such conduct, the abusive debt collector should receive nothing and pay a fair amount for damages.
Suing the wrong individual, with the same name
In a state with 33 to 37 million people living here at any time, many of us share the same first and last names, even within the same city. I have represented numerous clients, whom a debt collector sued, thinking that the defendant was my client, when it was not. This was not identity theft (which I have also seen and successfully defended), but a case of mistaken identity. Sometimes the client is served with the lawsuit and must defend him or herself against another person’s debt. Sometimes, the client was not served, but learns of the debt under his or her name, because of a wage garnishment, lien against their property, or bank account seizure. It is frustrating for people who are required to defend against the bad debts of someone else, perhaps even living across town or just down the street. In one recent case, my client found 11 people with the same name in the San Jose area, where he lives. The only way to protect your rights is to hire a lawyer who will vigorously defend you and make the debt collector return all your legal fees and costs. In my opinion, the debt collectors do not care who pays off a debt, and they prove my point when they call third-parties about bad debts, although such calls are illegal.
Medical debts that were supposed to be paid
With so many people uninsured or who have very high deductibles, and insurance companies arbitrarily denying claims or creating arbitrary hoops in the claims process, collection suits for medical bills are more frequent. Many medical providers don’t even bother sending any bill to the consumer, but refer uninsured charges directly to a debt collector. I recently defended a client all the way to trial, because she thought that her personal injury attorney would file a case for her accident, and the chiropractor would be paid through the medical lien. However, when the personal injury claim was not pursued, she was sued on the $4,300 medical bill, which she did not believe she had to pay. The case settled on the day of trial, after several hours negotiating a fair settlement.
Statute of limitations defense: save your bank statements and payment receipts
In California, a lawsuit on a written contract must be filed within four years from the date of default on such contract or the last date you made a payment. If the contract adopts the laws of another state, the lawsuit may need to be filed within three years, and within two years if there was no written contract. The first way to prove that they filed the complaint after the limitations period expired is to review your bank records and account statements for proof of last payment. Debt collectors get super aggressive, when the limitations period is about to expire. The debt could be for $100,000, but if their collection lawsuit is filed one day late, it is untimely and the collector should get nothing, if you have the proof. You may even be entitled to your legal fees and costs, plus damages, because the Fair Debt Collection Practices Act and Rosenthal FDCPA make it illegal to file an untimely lawsuit against a consumer.