Reid & Gaudett Law Group, LLP  The Law Office of Andrea R. Reid

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Office:  1.413.737.1200

  
The Law Office of Andrea R. Reid
 
Consumer Rights

CONSUMER RIGHTS ILLEGAL DEBT COLLECTION PRACTICES  

A Common Type of Illegal Debt Collection Practice is Dunning.

Dunning is the creditor’s practice of trying to encourage the debtor to pay back debts. This practice is entirely legal, except when the creditor:

  • Calls the debtor at home more than two times in each 7-day period or at any other place in each 30-day period for each debt.
  • Calls the debtor and does not identify himself or that he is calling on behalf of the creditor.
  • Sends collection notices to the debtors that openly indicate/imply that the person is in debt.
  • Tells anyone about the debt in hopes of intimidating the debtor into paying.
  • Contacts the debtor directly when the creditor has been notified to communicate only with the debtor’s attorney.
  • Calls the debtor outside of normal waking hours (approximately 8am to 9pm).
  • Causes the debtor to be charged for long distance phone calls.
  • Falsely threatens to take legal action.
  • Threatens to use violence.
  • Uses obscene language.

We can protect you against the following Unfair Dunning Debt Collection Practices:

  • Repeated calls
  • Abusive language and threats of legal action
  • Contacting your neighbors, relatives, friends, coworkers, and employers
  • Deceptive and illegal methods of debt collection
  • Misrepresentation of the amount or status of a debt
  • Disclosure of your default debts to third parties

If you have been the victim or are the victim of any of the above in illegal dunning practices, please contact us today for a FREE Consultation.

 

HOW TO FIGHT BACK AGAINST UNFAIR DEBT COLLECTION PRACTICES

Know Your Legal Consumer Rights!

The Federal Fair Debt Collection Practices Act, a United States statute enacted in 1978, seeks to eliminate abusive and harassing behaviors that debt and collection agencies often engage in. The FDCPA states specific practices and rules under which debt collectors can and cannot operate, and offer specific penalties for agencies found breaking this law. The following is a summary of your rights.

A Creditor or Debt Collector Cannot:

  • Discuss your debt with third parties, such as friends or neighbors without your direct prior consent or judicial authority.
  • Represent or imply they are affiliated with the federal government or any state or distribute any document which simulates or falsely represents that it is authorized by any court or government agency.
  • Use or threat to use violence or criminal means to cause physical harm, or harm to your reputation or property.
  • Collection agencies may not communicate with a debtor during an inconvenient time or place. The FDCPA states that only appropriate times to contact the debtor are between 8 a.m. and 9 p.m.
  • If a debtor has legal representation, the collection agency cannot directly contact him or her directly.
  • A debt collection agency is forbidden to harass a debtor. This includes threatening violence or any other criminal action that could harm the consumer's body, property, or reputation. In addition, agencies may not use offensive or crude language, or report a debtor to anyone other than credit bureaus or the court system.

You Should:

  • Request verification of a disputed debt in writing.
  • Create a paper trail by keeping a record of the date, time and name of the individual contacting you and putting all of your requests and responses in writing. Plan to repay any undisputed obligation and determine a payment plan you can maintain and provide that to the creditor or debt collector in writing.
  • Check the licensing status or Bar status of a debt collector/attorney which contacts you.
  • Attend any scheduled court proceeding including Small Claims Court so you do not lose by default.
  • Assert your rights in court to ensure that the Court does not order you to make payment from exempt assets.

A Creditor or Debt Collector Must:

  • Tell you the amount of the debt and the name of the creditor to whom it is owed at the initial communication or within five days of the contact.
  • Disclose in the initial communication that they are attempting to collect a debt and that any information obtained will be used for that purpose.
  • Disclose the name of the creditor or debt Collection Company and the name of the individual collector making the contact.
  • Inform you of the name and address of the original creditor if you request that information in writing within thirty days of the initial contact.
  • Communicate directly with your attorney if you provide such information to the creditor or debt collector.
  • Notify you in writing within thirty days of the initial contact of your right to not have collection telephone calls made to your place of work.

A Creditor or Debt Collector Can:

  • Assume a debt is valid if it is not disputed within thirty days of contacting the consumer.
  • Contact any person, including family and friends, for the sole purpose or acquiring information on where you live or how to contact you.
  • Call you at home and come to your residence during normal working hours which are from 8:00 A.M. to 9:00 P.M., but only twice in any seven day period.
  • Collect expenses in excess of the amount owed, such as fees or interest, if such charges are expressly authorized by the agreement or permitted by law.

 

FAQS

What types of debts are covered under the FDCPA?

A: The Act covers personal, family, and household debts, including money you owe on a personal credit card account, an
auto loan, a medical bill, and your mortgage. The FDCPA doesn’t cover debts you incurred to run a business.

How can I stop a debt collector from contacting me?

A: If a collector contacts you about a debt, you may want to talk to them at least once to see if you can resolve the matter – even if you don’t think you owe the debt, can’t repay it immediately, or think that the collector is contacting you by mistake. If you decide after contacting the debt collector that you don’t want the collector to contact you again, tell the collector – in writing – to stop contacting you. Here’s how to do that:

Make a copy of your letter. Send the original by certified mail, and pay for a “return receipt” so you’ll be able to document what the collector received. Once the collector receives your letter, they may not contact you again, with two exceptions: a collector can contact you to tell you there will be no further contact or to let you know that they or the creditor intend to take a specific action, like filing a lawsuit. Sending such a letter to a debt collector you owe money to does not get rid of the debt, but it should stop the contact. The creditor or the debt collector still can sue you to collect the debt.

Is there a statute of limitations on billing for bad debts?

A: There is no statute of limitations on billing for bad debts, but there are statutes of limitations for filing lawsuits and for reporting the debts to the credit reporting agencies. Although these do vary depending upon the type of debt, in general there is a six year statute of limitations for filing a lawsuit to collect upon a debt, and a seven year statute for reporting bad credit. It is rarely a good idea to decide not to pay a good debt if you are relying wholly on the statute of limitations, because there are more complicated issues involved, including when these may be tolled, or extended, or even when the statutory period has begun to run. But for your question, even if the statute of limitations has run, as long as a collector follows the debt collection rules and is not harassing you, they may continue to make reasonable collection efforts, short of going to court.

A creditor of mine just threatened to garnish my wages. Can they do that?

A: That depends. Collectors are generally not allowed to threaten to garnish your wages unless they inform you that a court order is needed to take this action. However, there are some exceptions to this rule. For example, if the debt you owe is to a government agency, most likely a student loan guarantor, a court order may not be necessary. Either way, you would be entitled to receive 30 days' notice prior to any order to your employer to garnish your wages, and you must have an opportunity for a hearing concerning the existence of, or the amount of, the debt.

 

TYPES OF ILLEGAL DEBT COLLECTION WE HANDLE

    Credit Cards
Ignoring credit card debt will not make the situation go away and the results will follow you for years. Ideally, it's best to work out a payment plan with your creditors to pay off the debt. However, if you default on credit card debt, it will affect your credit, overall debt and you may even end up with a lawsuit.

Immediate Consequences

The initial impact of defaulting on a credit card is late payment fees and interest rate hikes. Late fees will continue to grow and will be applied to your balance as long as the account is open. The late fees combined with higher interest rates results in soaring monthly payments and further debt. Unfortunately, individuals who were unable to make the minimum payment due before defaulting find themselves in a worse financial situation after the fact. As of February 22, 2010, your interest rate will only go up if you are more than 60 days late on your payment.

Creditors and Collections

If you're only a few days or weeks late, the creditor will try to contact you by phone and possibly by mail. If you are unable to make payments, or a payment plan cannot be reached within a reasonable amount of time (usually three to six months), the creditor will refer the account to an outside debt collection agency and close the account. A debt collection agency will try to get as much of the debt owed and may work out a payment plan with you.

Legal Action

If your account is seriously delinquent or you cannot work out a payment plan with your creditors, the credit card company or a collection agency may bring a lawsuit against you. If a judgment is brought against you in court, your wages may be garnished or a property lien may be ordered.

• The case of your defaulted credit card loan may be handed over to a collection agency

• The collection agency will be entrusted with a responsibility to collect the credit card debt

• You will be charged the cost associated with the collection of your credit card

• You will be liable to pay court costs and attorney fees other than collection fees

• You can be dragged to court in case of your defaulted credit card

• The amount that your wages is garnished with may be limited by Federal law

• Your may face the interception of your state and federal
income tax refunds

• Part of your Social Security benefit payments may be withheld by the Federal government

• The defaulted credit card will negatively affect your credit record and make you suffer its detrimental
  effects

• You will find it difficult to obtain a mortgage loan, an
auto loan and even credit cards

• You will be denied deferments, federal interest benefits and renewal of your professional license

    Billing Rights
If you as the debtor believe that there is an error on your credit statement, or you otherwise wish to dispute information on your credit card bill, you have 60 days to send the creditor a written notice.

This written notice must include:

         Your name and account number.
         Your belief that the statement contains a billing error
         The amount of the error
         The reasons you believe that the statement contains a billing error

While you do not have to pay the disputed amount on the bill, you do have to pay any undisputed amount on the bill.

The creditor has 30 days to send a written acknowledgement of your dispute, and may not take action to collect the disputed amount or close your account in the meanwhile. The creditor has two complete billing cycles after the receipt of your written notice to investigate your dispute and send you a written response, either correcting the bill and crediting your account, or explaining to you why there is no error in the bill.

If the creditor determines that there is no mistake in the bill, you may request copies of the creditor's documentary evidence of the debt, e.g., a copy of a signed charge slip for a purchase you do not believe you made. If you claim that you have been billed for goods that were not delivered, the creditor must determine that the goods actually were delivered, and provide you with a written statement to that effect.

Once the creditor has investigated your claim of a billing error and notified you of its belief that you still owe all or part of the disputed amount, it has no further obligation to investigate. The creditor must notify you of the amount of time you have to pay the amount due without incurring further charges.

If you notify a creditor that you believe there are billing errors in your statement, the creditor may neither report nor threaten to report your failure to pay the disputed amount to any credit reporting agency until the creditor has investigated your claim of a billing error and notified you of the amount of time you have to pay the amount due before incurring further charges. If you still do not pay the bill, the creditor may report you to a credit reporting agency, but must inform you of the agency to which it has sent this information. Also, if you continue to dispute the bill, the creditor must report that fact to the agency, and must correct any information given to the agency if the bill is subsequently resolved.

If you lose your card, or it is stolen, and someone makes use of your credit card number without your permission, you will owe $50 or the actual amount the unauthorized person has spent with it prior to your alerting your credit card issuer, whichever is less.

If you have authorized someone to use your card in the past, you may not be able to convince your credit card company that the person no longer has permission to use the card.

    Medical Bills
Dealing with a debt collector can be one of life's most stressful experiences. Harassing calls, threats, and use of obscene language can drive you to the edge. What's worse, a collector may embarrass you by contacting your employer, family or neighbors. You may even be hounded to pay a debt that is not rightfully yours. Sure, collection agencies have a job to do.

Know your rights. Learn to recognize abusive medical collection practices. Even if you owe a medical debt, a collector owes you fair treatment and respect for your privacy. Also, be aware that even if the collector's conduct does not exactly match the language of the federal Fair Debt Collection Practices Act, that collector may still be liable for its conduct. We explain your rights under federal and state laws.

If your first contact with a medical debt collector is by telephone, tell the caller that you want all future contact in writing rather than by phone. You can also instruct the collector not to call you at work or at all if that is your choice.

Start and keep a file. At the first contact from a collection agency, start a file. Your file should include dates and times of phone conversations, pre-recorded messages the collector leaves on your voice mail, and when you send or receive correspondence, notes of conversations along with the name of the collection agency employee. Copies of correspondence you send, as well as those you receive including envelopes. Collectors are supposed to give you written notice of the collection action five days after you are contacted by phone. Copies of messages those are abusive or overly intrusive.

    Vehicle Loans
An auto loan default can have a significant impact on your credit score and your overall credit history. An auto loan is a type of installment credit. And while a successful payment history can help boost your credit history, even a few late payments -- let alone a default or repossession -- can make for a major negative mark on your credit report.

The effects of defaulting on an auto loan, which can lower your credit score by over 100 points, may lower your credit score below prime (a FICO score of over 700), or may even lower your credit score to a subprime level (often viewed as below a FICO score of 550). Therefore, your auto loan default will make it more difficult to receive other types of revolving and installment credit, such as mortgages, credit cards, home equity loans, and the like. Some landlords even consider credit scores, and are apprehensive about leasing to individuals with credit scores under 600.

An auto loan default will also make it difficult to secure financing for another new or pre-owned vehicle. The lender with whom you defaulted will not be likely to extend further credit, and today's stricter underwriting guidelines mean that it will be very difficult to obtain financing without a significant down payment. Your auto loan default could also leave you without a vehicle altogether if it is repossessed. While many lenders will wait until an account is over six months delinquent, your finance contact may state that repossession could occur when the bill is just ten days late. Although this is unlikely, it is always a possibility.

 

    Utility
Creditors are not simply going to ignore your utility debts. They will eventually come back to haunt you one day. Firstly, your account will fall 30 days past due. This is not too much of a problem. You will get charged a late fee and you might get a courtesy call from your bank reminding you to pay your bill. You will also notice a little ding on your credit report. Depending on the bank, your account also might see a dramatic spike in the interest rate. If you continue not to pay your bill, your account will fall further into delinquency. This means that you account will be about 60 days past due. This definitely shows up on
your credit score and it will have an even bigger ding in it. You will be charged more late fees and your interest rate, if it hasn’t already gone up, is going to definitely rise. You will be getting more and more calls from your bank asking you why you are not paying.

If you continue to ignore your utility bill your account will fall into 90 days and then 120 days delinquency. It is in these stages where your bank is really going to try to get you to pay. They will stop asking you for the full amount and they will try to get you to pay just a little bit. You will get charged even more late fees and more interest. You should know the banks numbers by heart on your caller ID by now and your mailbox and email inbox are probably littered with
programs of re-payment.

Continuing to ignore your utility bill will put
your account into pre-charge off. This means that your bank is likely going to start offering you settlements. If you pay %50 of the total balance, the bank will forgive the rest. More late fees and more interest will accrue, adding to the total balance due. It will surprise you how quickly the balance amount will rise. From here your account will be sent to an outside collection agency. Outside agencies are not nearly as nice as your bank. They will call multiple times a day, even if you order them to cease calling. You might even see a representative showing up at your door.

The last stage is where your lender gives up. They will stop asking you to repay your utility debt. There will be no more phone calls, no more letters, no more offers of settlements. Everything will stop. That is, until you see a notice that they have put a lien on your house. After you sell your house or die, the proceeds of your mortgage will go to pay for the bill you ignored for so long and you will receive the remaining amount, if any.

DID YOU KNOW…
On April 7, 2011 expanded consumer protections will go into effect which significantly increase the money and personal property which is out of the reach of a creditor seeking to satisfy a court judgment.

What this means for you…
A creditor is unable to seize certain funds and property covered by the law to satisfy an outstanding debt. In addition, the revised law puts other protections into place for consumers who are over sixty years of age or consumers who are handicapped. These protections ensure that financially distressed Massachusetts residents are able to maintain the basic necessities of life.

Examples of personal items exempted:

  • An automobile up to $7,500 of wholesale resale value, this exemption rises to $15,000 for a handicapped person or a person age 60+
  • Cash, savings or other deposits in a bank account of up to $2,500
  • Household furniture up to $15,000 in value
  • Wages equal to 85% if the debtor's gross wages or 50 times the hourly minimum wage per week, whichever is greater
  • One computer and one television

 

To request a consultation please call our office at: (413) 737 1200

 

 

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult us or another attorney for individual advice regarding your own situation.


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