by Paul MankinI Am Getting Collection Calls From Companies I Do Not Owe!
Are you getting collection calls from a company you do not owe? How to make them stop can be quite simple or very difficult; it depends on who is calling, a creditor or a debt collector, and why they are calling.
Creditor vs. Debt Collector – Who is Calling Me?
A creditor is someone that a consumer owes an original debt to for goods or services they purchased directly from that person or company. Creditors may include:
- Credit card companies
- Healthcare providers
- Plumbers, accountants, and other professionals or tradesmen
- Landlords or rental companies
- Banks, mortgage companies, and financial institutions that provide consumer loans
- Governmental entities to whom you owe money for fines, fees, or taxes
Basically, a creditor is someone who provided you with goods or services before receiving payment in exchange for the promise what you would later pay for the goods or services, or a governmental entity to which you owe a fine, agency fee, courts costs, or some type of tax.
A debt collector is someone that a creditor hires to collect a debt for them. A debt collector is defined by the Fair Debt Collection Practices Act (FDCPA) as:
“Any person who regularly collects, or attempts to collect, consumer debts for another person or institution or uses some name other than its own when collecting its own consumer debts.”
Determining who is calling you is the first step in making the calls stop. If a creditor is calling you and you have paid the bill in full, you should attempt to resolve the matter by asking them to look up your account and go over any payments or charges with you. If they are calling the wrong person, let them know that you are not the person they are attempting to contact and provide them with your full name and address. If they do not agree that they have the wrong person or telephone number, or on the amount you owe or do not owe, ask for their mailing address and send them a letter outlining why you believe their information is wrong and asking them to stop collection attempts. You should also mail a copy of your letter to the Federal Trade Commission at 6th and Pennsylvania Avenue, NW, Washington, D.C. 20850. But what if the calls are coming from a debt collector?
Debt Collectors – Why Are They Calling Me?
Debt collection agencies do one thing – they take money to collect on debts. Debt collectors usually work on a contingency; which means that they receive a percentage of the amount they are able to collect from the debtor. This gives them incentive to aggressively pursue a consumer to collect on the debt, because if they do not collect, they do not get paid.
How Can a Debt Collector Attempt to Collect Money I Do Not Owe Them?
Creditors oftentimes enter into contracts with debt collectors to provide them with debt collection services. They collect on debts owed to the creditor in exchange for a flat or hourly fee, or a percentage of what they are able to collect. This enables the debt collector to act on behalf of the original creditor and make any legal attempts necessary to collect on the debt. So while you may have never agreed to pay the debt collector or have any kind of contract with them, they are allowed to collect on the debt you owe the creditor because they were hired by the creditor to collect it.
What Are Debt Collectors Allowed to Do When Collecting a Debt?
Debt Collectors are covered by the federal Fair Debt Collection Practices Act (FDCPA), which prohibits them from using unfair, deceptive, or abusive practices when attempting to collect a debt. Some of these prohibited practices are specifically mentioned in the Act, such as:
- Calling a consumer before 8:00 a.m. or after 9:00 p.m.
- Using obscene or abusive language
- Threatening to take actions it is not legally allowed to take or does not intend to take
- Telling consumers they will be arrested if they do not pay the debt
- Discussing a debt with third parties
- Allowing a consumers phone to ring repeatedly
- Contacting a consumer at work when it knows the employer does not allow personal calls
- Committing or threatening to commit violence against a consumer in an attempt to collect a debt
- Falsely implying they are employed by or affiliated with a government agency
- Reporting or threatening to report false credit information
Other unfair, deceptive, or abusive practices are prohibited by the Act, even if not specifically mentioned in the law.
What if the Debt Collector Got Inaccurate Information from the Creditor?
There are times when a debt collector receives inaccurate or false information from a creditor, such as the legal name, phone number, or address of the debtor, the amount of the debt, or the status of the debt (whether it has been paid in full or in part). This is generally not done on purpose but can become annoying and abusive to a consumer if they are being harassed to pay a debt and they are not the person who owes it or it has already been paid. If this happens to you, ask the debt collector for their mailing address and mail a letter requesting verification of the debt and cessation of the collection attempts. You should also mail a copy of your letter to the Federal Trade Commission at 6th and Pennsylvania Avenue, NW, Washington, D.C. 20850.
I Have Done All This and The Collection Calls Won’t Stop!
If you have written letters, requested information, and told the collectors you do not owe them money and stop calling until you were blue in the face and the calls continue, you may want to consider hiring a consumer lawyer. An experience consumer attorney can not only make the calls stop, but they might even be able to get the collector to pay you!
If you are getting collection calls from companies that you do not owe, contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinAce Cash Express Settles Class Action Lawsuit Accusing it of Being a Loan-Sharking Operation.
On September 6, 2001 a class action lawsuit was filed against Ace Cash Express in the United States District Court for the Northern District of Texas. The Complaint alleged that Ace Cash Express exploited low income consumers by charging outrageous and illegal interest rates on payday loans and used unfair, deceptive, and abusive practices to make and collect on those loans. The complaint called Ace Cash Express an illegal enterprise which amounted to a “massive loan-sharking operation.
The Plaintiff’s claimed that the company’s loan and collection practices violated several federal laws, including the Truth in Lending Act (TILA), the Fair Debt Collection Practices Act (FDCPA), and the Electronic Funds Transfer Act (EFTA), as well as anti-usury and consumer protection laws in more than 30 states where it does business.
According to the Complaint, Ace Cash Express, in violation of the TILA, falsely claims that its payday loans are made by Goleta National Bank, which allows it to evade state caps on interest rates and charge a rate that is over 440% per year. The deceptive claim allows it to do this, because nationally chartered banks, such as Goleta National Bank, are not subject to state interest rate laws. The cash advance company then markets its loan services to economically disadvantaged consumers it knows will not be able to repay the loans. The Complaint alleges that the company does this in order to force those consumers to continuously extend or renew the loans, causing them to incur additional interest charges, oftentimes resulting in the consumer paying interest that is several times the amount of the original loan. This type of predatory lending, says the Plaintiff, nets Ace Cash Express and its collaborators tens of millions of dollars a year in “ill-gotten” profits, and violates state laws against unjust enrichment.
The company’s disregard for the law does not stop there, however. The Complaint further alleges that borrowers who are unable to pay their loan by the due date, and choose not to reinstate or extend the loan, and are then subject to abusive collection practices, such as being told they will be arrested and have criminal charges filed against them if they do not pay, having their personal information disclosed to third parties, and being contacted at their place of employment. These collection tactics are all specifically prohibited by the FDCPA. Ace Cash Express was also alleged to have violated the EFTA, by requiring consumers to authorize automatic debits of their checking account as a condition of obtaining a payday loan, and the FDCPA, by then repeatedly attempting to debit the accounts, causing consumers to incur unwarranted bank fees.
In October of 2002, the parties reached a Settlement Agreement and on December 11, 2003 the Court approved the Agreement. Ace Cash Express agreed to establish an $11 million settlement fund, make at least $2.5 million in cash payments to members of the class action suit who had repaid their loans, and forgive $52 million of class members’ debt who had not repaid their loans. It also agreed to refrain from associating with other banks in order to skirt state interest rate caps, stop some of its abusive collection practices, such as repeatedly attempting to debit borrower’s bank accounts, and provide consumers with specific disclosures about its debiting practices and bank fees they might incur as a result of any debits.
It appears as if the Settlement did not deterred Ace Cash Express from using predatory lending or deceptive and abusive collection practices, however. In July of 2014 the company was ordered by the Consumer Financial Protection Bureau (CFPB), a federal agency in charge of overseeing companies in the financial industry, to pay $10 million for abusive practices it called “predatory behavior that forced consumers into a cycle of debt”. The CFPB found that Ace Cash Express attempted to create a false sense of urgency in loan repayment by repeatedly calling defaulted borrowers, discussing their debt with third parties, and threatening arrest and criminal charges if they did not pay. The agency said that the company did this to convince borrowers who were unable to repay their payday loan to temporarily pay it off and then quickly take out a new loan, which caused the borrowers to incur new fees and more debt they would likely be unable to repay. Sound a bit familiar?
Sadly, a look at the almost 700 complaints filed against Ace Cash Express with the Better Business Bureau (BBB) and CFPB since the class action settlement and CFPB order to pay $10 million seems to indicate that the payday loan company still has no intention of ceasing its unlawful lending and collection practices.
If Ace Cash Express has harassed, abused or misled you in an attempt to collect on a debt, contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinCredit One Bank Harassment
Credit One Bank harassment has been reported to the Better Business Bureau (BBB) by over 1,200 consumers in the last four years. Complaints allege that the credit card company has harassed consumers by placing repeated calls to their cellular phones, attempting to collect for charges that were reported as fraudulent and suspending consumer’s online accounts for no reason. So what can be done to stop Credit One Bank Harassment?
Credit One Bank Harassment Complaints
Many of the 1000+ consumer complaints filed with the BBB against Credit One Bank describe rude and unhelpful customer service representatives, long wait times, automated menus that do not work correctly, and disconnected or dropped calls. Many consumers have also complained that the credit card company’s online account access and mobile app never work correctly, lock them out for no apparent reason, and do not provide basic services that other credit companies websites and apps provide. The company has also gotten many complaints alleging that they refused to take a payment and then charged late fees for the missing or late payment.
Other complaints allege violations of the Rosenthal Fair Debt Collection Practices Act (RFDCPA), a California law that mirrors the federal Fair Debt Collection Practices Act (FDCPA), but unlike the federal law, applies to original creditors and not just debt collection agencies. These violations include:
- Charging consumers bank accounts without permission
- Adding fees not authorized in the original agreement
- Making repeated calls to consumers to collect on late payments
- Reporting false credit information to the credit reporting bureaus
It appears as if Credit One Bank harassment comes in many forms, including preventing consumers from making payments by adding extra digits to bank account numbers then returning payments made on the ‘invalid’ account, charging a $9.95 fee to pay online, suddenly requiring verification of bank accounts and refusing to accept payments until it is received, and returning checks without reason. According to numerous complaints on the BBB’s website, after the company refuses payment, it then charges late fees and returned payment fees for the late payment. Online reviews and complaints also call the company a predatory lender and say that customer service representatives make false statements regarding fees in order to convince consumers to keep their accounts open, that the company charges the annual fee in monthly installments without notifying consumers, causing them to have late fees for months when they had a zero balance, and that they mail offers to increase consumers credit limits and then charge them a fee if the offer is accepted.
How do I Stop Credit One Bank Harassment?
There are several things that you can do to stop Credit One Bank harassment. It depends on why they are harassing you. If you are not the person they are trying to reach, they may stop calling if you simply tell them who you are and that you either do not know the person they are trying to reach, or you do not have the current contact information for the person. If you do owe Credit One Bank money you can either attempt to make payment arrangements so that the debt is more manageable, or if you cannot pay the debt or do not wish to pay the debt, you can notify them in writing that you want them to stop attempting to collect the debt. Make sure to keep a copy of the letter for yourself and also send one to the Federal Trade Commission at 6th and Pennsylvania Avenue, NW, Washington, D.C. 20850. Once the bank receives the letter they are only permitted to contact you one more time in order to let you know that they received your letter, will stop contacting you, and what other action they intend to take, if any.
But what if the charges on your card are fraudulent and the harassment will not stop? Credit One Bank harassment, according to many of the complaints filed with the BBB includes its handling of fraudulent charges and even fraudulent accounts. If you have reported a fraudulent charge or account to Credit One Bank and the issue is not resolved, you should put the information in writing and mail a copy of your letter to the Federal Trade Commission at 6th and Pennsylvania Avenue, NW, Washington, D.C. 20850. Your letter should include the dates and amounts of the fraudulent charges and why you believe the charge is fraudulent (it was unauthorized, the card was reported as lost or stolen, you paid for goods or services you never received, it was a double charge, etc.).
Credit One Bank may also be refusing to close your account and charging you monthly fees in order to keep it open. If this is the case, you should mail them a letter requesting that they close the account immediately and, as always, also send a copy to the Federal Trade Commission. In the end, you may need to consult with an FDCPA attorney to resolve your issues.
If you are experiencing Credit One Bank harassment, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinThe Bill Collectors Just Won’t Stop! Creditor Harassment After Chapter 7
The repeated and harassing phone calls from creditors and debt collectors were one of the reasons you filed your chapter 7 bankruptcy petition; it was supposed to make the bill collectors stop! But many consumers have found this is not always the case and creditor harassment after chapter 7 is far more commonplace than it should be. So what can you do to make it stop? Well, that depends on why it is happening.
Why Does Creditor Harassment After Chapter 7 Occur?
Creditor harassment after chapter 7 can happen for a few reasons:
- You just recently filed your petition and the creditor has not had time to get notice
- Your petition did not include the creditor or it had the wrong address listed
- Notice of your filing slipped through the cracks and did not get attached to your account
- The debt was sold to another company that is unaware of your bankruptcy filing
- The creditor is simply ignoring the law
Before you can stop a creditor from harassing you after you have filed for chapter 7 bankruptcy protection, you must determine why they are still doing it.
How to Determine Why a Creditor is Still Harassing You and Make them Stop
If you filed your bankruptcy petition in the last week or so, your creditor may not have had enough time to get the notice of the filing and properly process it. This is oftentimes the case with very large companies who must follow various procedures that include a number of different employees in order to update your account in its computer systems. Give your creditors 30 days to stop harassing you and in the mean time, simply let them know that you have filed for chapter 7 bankruptcy protection. If you have your case number, give it to them, as this may help speed up the process of getting them to stop calling you.
Creditor harassment after chapter 7 should not occur any later than 30 days after filing and if it is, you will need to take action to stop it. The first thing you should do is simply ask the creditor if they are aware that you have filed a chapter 7. If they are not, provide them with the cause number and if that is not enough, ask where you can send notice, if it is a new case, or your discharge order, if your case has already been closed. If it is a collection agency or law firm harassing you, ask for the original creditor’s information as well. Once you know who the original creditor is and where to send the notice, you will need to check to make sure the creditor was included on your petition. If they were, send them the notice or the discharge order. If they were not, you may need to reopen your case and should contact an attorney to discuss your options.
Once you are sure that a creditor was listed in your chapter 7 filing and has received notice of it, you can assume that they are still harassing you because they are simply ignoring the law. So then what?
When Creditors Ignore the Law
A large number of cases of creditor harassment after chapter 7 occur because the creditor simply chooses to ignore the law and continue its collection efforts. Creditors do this hoping that you will not know your rights or how to enforce them and cannot afford an attorney to help you, so you will just pay them in order to stop the harassment. So what are your rights and what if you cannot afford an attorney to help you enforce them?
You have the right to be free of creditor harassment after chapter 7. As soon as your chapter 7 bankruptcy petition is accepted by the court a federal stay goes into effect. This stay prohibits any of the creditors or debt collectors listed on your petition from attempting to collect the debt from you in any way. The stay is effective until your case is decided or a specific creditor asks for, and obtains, relief from the stay from the bankruptcy court. If a specific creditor is granted relief from the stay, only they may resume collection attempts. If your case is dismissed, the stay is no longer in effect and all of your creditors can resume all of your creditors are prohibited from ever attempting to collect on the debts again and from reporting late or missed payments to the credit reporting bureaus.
An experienced attorney will not charge upfront costs; you only pay if you get paid.
Oftentimes when a person experiences creditor harassment after chapter 7 their instinct is to contact the attorney who represented them in their bankruptcy case. This makes perfect sense, but may not be the first thing you should do. Once your bankruptcy case is closed and your debts have been discharged your bankruptcy attorney has done everything you paid them to do and any new issues will likely cost you more money. So, what you really need to do if you are experiencing creditor harassment after chapter 7 is contact an attorney experienced in creditor harassment and the Fair Debt Collection Practices Act (FDCPA)
How Can a FDCPA Attorney Help Me With Creditor Harassment After Chapter 7?
While a bankruptcy attorney may be able to reopen your bankruptcy case in order to ask the court to stop a creditor from harassing you, there will very likely be legal fees involved, and what will this really accomplish? The creditor is already required by federal law to leave you alone, so why pay an attorney to go back into court and ask that they again be ordered to leave you alone? You might not have to. Creditor harassment after chapter 7 could be a violation of the FDCPA. If this is the case, an experienced FDCPA attorney may be able to not only get the creditor to stop harassing you, but they may have to pay you!
If you are experiencing creditor harassment after chapter 7, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinCreditor Harassment after Chapter 7
While federal law prohibits a creditor or debt collector from attempting to collect on a debt after it has been discharged in bankruptcy, creditor harassment after chapter 7 is quite common. Collectors oftentimes pretend to be unaware of the bankruptcy filing or simply lie about your legal responsibility to pay the debt. This is a violation of federal bankruptcy law and possibly the Fair Debt Collection Practices Act (FDCPA). Other creditors may honestly be unaware that the debt was discharged in bankruptcy, but the law still applies and they are violating it by attempting to collect the debt.
Creditor Harassment after Chapter 7 and Federal Bankruptcy Law
When a chapter 7 bankruptcy petition has been filed, a federal stay goes into effect, and all collection attempts must immediately stop until the case has been resolved. If the petition is subsequently granted, the debt is considered discharged. A discharge does not mean that you no longer owe the debt; it means that the creditor is simply not allowed to attempt to collect it and may not continue reporting late or missed payments on your credit report. Creditor harassment after chapter 7 may occur for a few reasons:
- The debt was mistakenly not included on the bankruptcy petition
- The creditor did not receive notice of the filing
- The debt collector purchased the account from someone else and is unaware of the filing
- The creditor is simply ignoring the law
So what should you do if you are being harassed by a collector after filing chapter 7? It depends on the situation.
How to Stop Creditor Harassment after Chapter 7
If you have just recently filed your bankruptcy petition, you should give your creditors a few days to get notice from the court and stop their collection attempts. After that, you will need to determine why the collector is still attempting to collect on the debt. The first thing you should do ask the collector who the original creditor is, then check your petition to ensure that the creditor was listed. If the debt was not included in the bankruptcy, you will need to contact your bankruptcy attorney and possibly reopen the case. If the debt was included, but has now been sold to someone else, a simple letter from your attorney or a copy of the discharge order may stop the collection attempts. If creditor harassment after chapter 7 is occurring when the debt was included on the bankruptcy petition, and/or the collector has been notified of the filing by you or your attorney, the creditor may simply be ignoring the law. In this case, they may not only be violating federal bankruptcy law, but the FDCPA.
If you are experiencing creditor harassment after chapter 7, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinAce Cash Express Ordered to Pay $10 Million for Its Abusive Debt Collection Practices
In July of 2014 one of the largest payday loan companies in the United States was ordered to refund $5 million to consumers and pay another $5 million in fines for what the Consumer Financial Protection Bureau (CFPB), a federal agency in charge of overseeing companies in the financial industry, called a predatory behavior that forced consumers into a cycle of debt.
Ace Cash Express is a payday advance and installment loan company who also provides bill pay and other financial services. It is headquartered in Irving, Texas and has retail locations in 36 states and the District of Columbia. The company also uses the names America’s Cash Express, Ace America’s Cash Express, and Ace Cash Express, Inc.
The CFPB found that Ace Cash Express attempted to create a false sense of urgency in loan repayment by repeatedly calling defaulted borrowers, discussing their debt with third parties, such as family members and employers, threatening to sue them when it did not intend to, and even threatening criminal prosecution and jail if they did not pay. It said that the company did this in order to convince defaulting borrowers to temporarily pay off their loan and then quickly take out a new loan. Each new loan caused the borrower to incur new fees. The CFPB said that creating this false sense of urgency was abusive and violated the Dodd-Frank Wall Street Reform and Consumer Protection Act, which allows the CFPB to take action against institutions that use unfair, abuse, and deceptive business practices.
The $5 million Ace Cash Express was ordered to pay to consumers was paid in the form of refunds to borrowers who were harmed by the company’s illegal actions during the relevant time period. The CFPB’s order also required the payday loan company to ensure that borrowers were no longer pressured into continuously taking out new loans in order to pay off the old one and that it ended its other unfair and deceptive collection practices.
A review of the nearly 700 complaints filed against Ace Cash Express with the Better Business Bureau (BBB) and CFPB since it was ordered to pay the $10 million seems to indicate that the company may not be following the 2014 order. Many consumers allege in their complaint that the payday loan company added unauthorized fees, contacted a third party about their debt, told them that they would be arrested if they did pay the loan, or threatened to report false information to the credit reporting bureaus. All of which are practices that it was specifically ordered to stop using.
If Ace Cash Express has harassed, abused or misled you in an attempt to collect on a debt, contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinCan Allied Interstate Garnish My Wages?
Is Allied Interstate garnishing your wages or have they threatened to garnish your wages? Can they do this? The answer depends. Any creditor or debt collector may be able to garnish your wages, but they must follow the proper procedure, and some wages are exempt from garnishment.
Can Allied Interstate Garnish My Wages Without Suing Me?
Each state has its own procedure that must be followed before a creditor or debt collector can garnish your wages. Generally, they must first file a lawsuit against you, provide you with proper service, or notice of the suit, and obtain a judgment first. Then, if you do not pay on the judgment, they can ask the court for a garnishment order, which they would then send to your employer. A garnishment order requires your employer to withhold a certain amount of your income each pay period to pay on the judgment. This procedure may not apply to certain government entities, such as the Internal Revenue Service (IRS), but it does apply to Allied Interstate. So, if you asking, can Allied Interstate garnish my wages without suing me, the answer is no. If they have threatened to garnish your wages, you do not need to become alarmed that the garnishment will begin immediately, however you should watch for notice of a lawsuit and respond to any that you receive.
Can Allied Interstate Garnish My Wages Without Providing Me Notice of a Lawsuit?
Rules of Procedure in each state require a party who sues anyone to provide them with proper notice of the lawsuit. Sometimes, a plaintiff serves a defendant at the wrong address, or does not follow the rules, and fails to provide proper notice. This can allow them to obtain a judgment without the defendant’s knowledge that they have even been sued. So the answer to the question, can Allied Interstate garnish my wages without providing me notice of a lawsuit, is no. If Allied Interstate is garnishing your wages, but you never received notice of a lawsuit, you may need to contact an attorney who can have the garnishment order set aside, help you negotiate a settlement or appear with you in court to dispute the debt or the amount of the debt.
Can Allied Interstate Garnish My Wages if They are Exempt from Garnishment?
Some federal benefits cannot be garnished, such as social security, and state laws may exempt certain other wages from garnishment or limit the amount that can be garnished. Anyone whose wages are being garnished by a creditor should contact an attorney in their state to determine if the garnishment is proper and the amount being garnished exceeds state limits.
If Allied Interstate has threatened to garnish your wages or is already garnishing them, please contact our office at 1-800-219-3577, for a free, no obligation case review.
by Paul MankinCan a repossession agent come on private property and repossess your car?
Can a repossession agent come on private property to repossess your car? The quick answer to this is yes. The California repossession laws allow repossession agents to enter private property to repossess a car or vehicle. But, of course, there are exceptions.
A common scenario where a repossession agent is allowed to enter private property is when the car or vehicle is parked outside on a driveway in front of a garage. There is no fence or gate blocking access to the property or the car. In this situation, the repossession agent is allowed to walk onto the owner’s property and repossess the car.
A repossession agent can also walk into the backyard to repossess a car as long as there is open access to the backyard. Again, there must be open access to the backyard. There cannot be a locked fence or gate that prevents entry into the backyard. For instance, a repossession agent could walk through a walkway on the side of the house to repossess a car.
Shockingly, the repossession laws even allow a repossession agent to repossess a car that is parked in a garage as long as the garage door is open when the repossession agent gains access to the car. So if a car is parked in a private garage with the garage door wide open, the car is fair game for the repossession agent to repossess.
Breaching the Peace is Illegal!
While California repossession laws allow a repossession agent to enter private property to repossess a car, the agent may not repossess a car if it requires breaching the peace to do so. The courts have held that breaking a lock or a fence to gain access to a car or vehicle is a breach of the peace. Once a breach of peace occurs the repossession agent and finance company lose the present right to possession of the car or vehicle.
Some examples are if there is a locked fence that surrounds the property where the car is located, a repossession agent cannot gain access to the car or vehicle for repossession. Breaking the lock or fence is a breach of the peace. If a car is parked in a closed garage, the repossession laws also state it is a breach of peace to break into the closed or locked garage. Finally, it is a breach of peace to repossess a car in the backyard if the repossession agent must break a lock or gate that blocks free entry to the backyard.
If a repossession agent does commit a breach of peace by breaking a lock, fence, or garage, this amounts to a wrongful or illegal repossession and gives the consumer a right to sue. The consumer is allowed sue the repossession agency and/or the finance company for conversion (basically theft) and other claims.
If a repossession agency repressed your car or vehicle by breaking a lock or gate, call the repossession lawyers from the Law Office of Paul Mankin, APC at 1-800-219-3577. We provide you with a free no obligation case evaluation and explain your repossession rights under the California repossession laws.
by Paul MankinHow Many Car Payments Can You Miss Before Repossession?
We frequently receive questions like this. How many car payments can you miss before repossession? How many days late can you be on a car payment? How many car payments can I get behind before a repossession? All these are variations of the same question.
The repossession laws state that once you are in default a creditor is allowed to repossess your car or vehicle. Generally speaking, the contract that you signed when purchasing your car or vehicle determines when you are in default. While there are exceptions, most contracts state that a consumer is in default if their payment is one day past the due date.
So, if your car payment is due on the 1st of the month, you are in default or late on the 2nd of that month. This ultimately means that if a payment is not made by the 1st of the month, the finance company can repossess your car or vehicle on the 2nd of the month. Even though this seems too soon or unfair, the repossession laws will support the finance company in this situation. Also, unless your contract states otherwise, the repossession company does not need to call you, send you a letter, or give you any notice that it will be repossessing your vehicle.
Although the finance company has the right to repossess your car or vehicle after one day of being late, repossessing a car this quickly would be unusual. Oftentimes, finance companies wait a few weeks or a month after the payment due date before ordering a repossession. Generally speaking, it is in the finance company’s best financial interest to have their customers continue to pay on the car loan versus repossessing the car.
We have heard of situations where a car is repossessed after six months of non-payment. But, this is not typical, and more often than not in these situations, the finance company did not wait six months before ordering the repossession. The repossession was ordered after the first month of non-payment, but it took five months for the repossession agent to find the car. Usually, the borrower moved to a different state and did not update their address with the finance company making it difficult for the repossession agency to locate the vehicle.
Of course there are exceptions to almost everything. If your finance company told you that you could make your car payment on a different date, then the default date may have been changed. Similarly, if you usually pay on a day that is after your payment due date, your default date might have been changed by your repeated performance of paying late.
A word of caution. If your finance company tells you that you can make a payment past the normal payment due date, it is best to obtain this agreement in writing. An email, text message, or a recorded phone call (recorded legally of course) are all ways to document this new agreement. Unfortunately, it is extremely common for a finance company to tell a borrower that he or she can make a late payment and then still repossess the car before the agreed upon date. When the borrower calls the finance company to complain that it mistakenly repossessed or wrongfully repossessed the car, the finance company claims to have no record of the agreement to pay late. It is very difficult to prove that the agreement was made in the first place without some evidence of the agreement.
On the other hand, finance companies mistakenly repossess or wrongfully repossess cars when the borrower is current. The finance company makes an accounting error or doesn’t properly record a payment. Its payment system then incorrectly states that the borrower is behind in payments when the borrower is current. A repossession order goes out and the borrower’s car is wrongfully repossessed. The repossession laws provide protection for consumers or borrowers when this occurs. It is best to contact a repossession lawyer if this has happened to you.
Unfortunately, there really isn’t a certain number of days or payments that can be missed before a repossession occurs. Its always best to stay current on your car loan. And, if you make an agreement with your finance company to extend the payment due date, it is best to document that agreement in writing or a recording.
If you have had your car or vehicle repossessed when you were current on your car or vehicle payments, feel free to call a repossession lawyer from the Law Office of Paul Mankin, APC at 1-800-219-3577. We will provide you with a free no obligation case evaluation.
by Paul MankinMy car was repossessed after a private party sale on Craigslist. What are my repossession rights?
Tim is searching for a used car to purchase. He decides to buy a car from a private party rather than a dealership. Tim has been searching on sites like Craigslist, Autotrader, and/or other private party bulletin board sites to locate the car he wants.
After some searching, Tim finds the car he wants. He contacts the seller and arranges a meeting to test drive the car. The test drive goes well so Tim brings the car to his mechanic for an inspection. His mechanic says the car is in good shape. The sellers shows Tim the title and says the car has been paid off in full. The title is in the seller’s name and does not show any liens on the car.
Tim feels comfortable that he can safely purchase the car. Tim and the seller agree on a price, he pays cash for the car, and the seller signs the title over to Tim. Tim is excited about his car and completes the title transfer and registration paperwork with the DMV. A few weeks later the DMV sends Tim title to the car in his name and the registration card. At this point, Tim believes he is done. The private party car purchase through craigslist or other online directory was a success.
Until A Couple Months later…
One morning Tim wakes up and is ready to go to work. Tim walks outside to find his car missing. He is in complete shock and believes that his car has been stolen. There is no other explanation for why the car is missing. The last thought on his mind is that the car has been repossessed. Tim immediately calls the police to report the car stolen.
After explaining to the police that his car is missing, the police inform Tim that his car has been repossessed. Tim doesn’t understand how this is possible and believes his car must have been mistakenly repossessed. The police provides Tim with the name of the repossession agency that reportedly repossessed his car.
Tim calls the repossession agency to get his car back. The repossession agency says it doesn’t have the authority to release the car to him. The repossession agency gives Tim the name of the finance company that ordered the repossession. The repossession agency further states that the finance company ordered the repossession six months ago (before Tim purchased the car) and that it won’t return the vehicle to him without the finance company’s permission.
Frustrated and confused, Tim calls the finance company. The finance company states that it has a lien on the car and that the it hasn’t received a payment on the loan in months. Tim explains that he purchased the car and paid for the car in cash. Tim also explains that the car title and registration is in his name without a lien holder.
What happens next depends on which position the finance company takes. Sometimes the finance company says that it rightfully repossessed the car and will refuse to return the car. Other times the finance company states that after reviewing the paperwork, it mistakenly repossessed the car and returns the car.
Either way, in Tim’s mind, the car was wrongfully repossessed. What are Tim’s repossession rights? What are the repossession laws? How do you get your car back after your car was repossessed when you have title?
The California Repossession Laws:
Fortunately, California has a number of repossession laws that give consumers rights when their car is wrongfully repossessed. This wrongful repossession scenario is a little unique. The conclusion as to whether the car was wrongfully repossessed really depends on the facts surrounding the finance company’s lien and Tim’s knowledge or lack of knowledge of the lien. Here, are a couple possibilities:
1. The finance company did not have a lien on the vehicle. A previous owner of the car paid off the loan and the finance company did not properly update their books to show the loan had been paid. Instead, the finance company wrongfully believed that payments had been missed by the borrower and wrongfully ordered the repossession of the car.
2. Another possibility is that a previous owner did not pay off the loan. The finance company is rightfully owed money on the car. Moreover, the finance company never received notice that the car was sold to Tim or that title was reissued in Tim’s name and registered to Tim. This usually occurs when the vehicle was purchased in another state and the car was then resold to a private party in a different state.
What are your rights under the repossession laws under both of these scenarios?
In California, in order for a finance company to lawfully repossess a car, it must have a valid lien on the car. In the hypothetical situation above, the finance company does not have a valid lien on the car because title was issued in Tim’s name by the DMV prior to the repossession.
In the case where the finance company did not update the previous owner’s loan as paid, the conclusion is very clear. The finance company wrongfully repossessed the vehicle and should return it to Tim. In this situation, not only did the finance company not have a valid lien on the car, the finance company was paid in full on the car loan, and was not owed any additional money. The finance company should immediately return the car to Tim and he most likely has a very strong wrongful repossession case.
If this has happened to you, the repossession laws are on your side and you have strong case against the finance company. We recommend contacting a repossession lawyer immediately for help.
In the case where the finance company still has an unpaid loan outstanding for the car, the case is more complicated. But, the repossession laws should still protect Tim and the repossession should still be considered a wrongful repossession. In this situation, the finance company did not have a valid lien to lawfully repossess the car. Again, title was issued in Tim’s name prior to the repossession and the finance company was not listed as a lien holder on the title. As a result, the finance company does not have a valid lien on the vehicle.
This scenario is complicated because the finance company is more likely to decide not to return the car to Tim. The finance company will sometimes state that there is still an unpaid loan on the car, and therefore, it is a valid lien holder. It might also state that someone (maybe even accuse Tim) fraudulently removed the finance company as a registered lien holder on the title. The finance company may even be partially right about being defrauded.
There are cases where a previous owner “washed” the car title by somehow removing the lien holder from the title when the car title is reissued in a new state. But, even if this occurred, as long as Tim is a “bona fide purchaser for value”, the repossession laws should still protect Tim and deem the repossession of the car as a wrongful repossession. This would allow Tim to get is car back and make a claim against the finance company for damages under a wrongful repossession theory.
In order for Tim to be considered a “bona fide purchaser for value”, he cannot have any knowledge of the lien holder when purchasing the car. Basically, Tim must be a completely innocent purchaser of the car with absolutely no idea that there is a finance company that has or should have a lien on the car. If Tim received any warning that there is a lien holder from the seller or from any research he performed during the purchase of the car, Tim would not be a “bona fide purchaser for value”. And, if Tim is not a “bona fide purchaser for value”, he will most likely not have a wrongful repossession claim.
If you were a “bona fide purchaser for value” and your car was repossessed after purchasing it from a private seller, you should contact a repossession lawyer. The repossession laws should protect you and you most likely have a case against the finance company. Feel free to call the Law Office of Paul Mankin, APC at 1-800-219-3577 for a free no obligation case evaluation.