by Paul MankinWhat types of debts are covered by the FDCPA?
The Fair Debt Collection Practices Act (FDCPA) applies to consumer debt incurred primarily for personal, family, or household purposes. This is basically any type of debt that was not incurred for business purposes and includes:
- Credit cards
- Home loans such as mortgages and home equity lines of credit
- Health care debt, including past-due bills for procedures, diagnostic testing, and rehabilitation
- Rental properties such as apartments and condominiums
- Utility bills, such as gas, electric, phone, internet, and cable services
- Car and other vehicle loans
- Student loan debt
- Internet loans
- Payday and cash advance loans
- Car title loans
- Retail financing such as furniture and appliance leases
In order for the debt to be covered it must be owed by a person and not by a business. So if you have a loan in your business’s name, it is not covered by the FDCPA. The debt must also be handled by a debt collector and not the original creditor to be covered by the FDCPA. However, in California, original creditors are governed by the Rosenthal Fair Debt Collection Practices Act (RFDCPA) which mirrors the federal FDCPA.
Debts that may not be covered are those that are not incurred voluntarily, such as income taxes, parking and speeding tickets, and domestic support obligations like child support and alimony, or spousal support.
If a debt collector or creditor is harassing or abusing you and you are unsure if they are covered by the FDCPA or RFDCPA, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinHow Long Does A Bankruptcy Stay On My Credit Reports?
Depending on the type of reportable credit event, the statutory reporting limit is either two years (credit history requests), seven years (missed payments; most public record items, such as court judgments; chapter 13 bankruptcy), or ten years (paid closed accounts; chapters 7, 11 and 12 bankruptcies). Bankruptcies are reported on consumer credit reports because they are credit-related (or debt-related) public records. The length of time a bankruptcy remains on a credit report depends on the type of bankruptcy.
A Chapter 7, 11 or 12 bankruptcy is reportable for ten years and a Chapter 13 bankruptcy is reportable for seven years from the date of filing in bankruptcy court. Chapter 13 has a shorter reporting time than other bankruptcy types because it requires at least partial repayment of the debts the filer is attempting to have discharged. In this way, a Chapter 13 bankruptcy is treated like any other non-payment or payment delinquency, which also has a reportable timeframe of seven years.
On the expiration of the reporting period for a specific bankruptcy, the bankruptcy and all discharged accounts should be deleted automatically. An account listed for discharge in the bankruptcy, however, may be removed prior to expiration of the bankruptcy’s reporting period or even prior to filing the bankruptcy altogether. Since the date for removal of delinquent accounts is based on the date of delinquency, the delinquency will fall off a credit report seven years after the delinquency and will not be renewed merely based on its inclusion in the bankruptcy.
If a consumer discovers that either a bankruptcy or any associated account remains on their credit report beyond the expiration period, the consumer can and should promptly open a dispute with any and all credit reporting bureaus—i.e., TransUnion, Experian, or Equifax—continuing to report the item(s). If the lingering credit item is an individual account or delinquency that should have fallen off either with or before an associated bankruptcy’s falloff, the consumer should be especially cautious in dealing with its removal.
Even if a debt has been discharged in bankruptcy, unscrupulous or underinformed creditors or collectors might use a debtor’s account inquiry or attempt at negotiating a credit report removal to justify re-aging the account. The fact that a debt is no longer collectible does not necessarily stop collectors from pursuing the a judgment on the debt or from using its presence on a consumer’s credit report to force undue payment. Thus, a debtor who knows or suspects a credit account item connected to a bankruptcy filing should have fallen off their report should file a dispute with the credit reporting bureau before attempting other methods of resolution.
by Paul MankinHow Long Does it Take to Settle a Claim Under the FDCPA?
A claim filed under the Fair Debt Collection Practices Act (FDCPA) is like any other lawsuit; there is no way to tell exactly how long it will take. While some lawsuits are settled quickly, others can drag on for months, and it all depends on the specific facts of the case such as the strength of the evidence and the collection agency being sued.
Strength of the Evidence
The strength of a debtor’s evidence can be a major factor in how quickly a case under the FDCPA is concluded. If the evidence is strong that the debt collector violated the law, the collector may chose to settle right away. For example, if a collector deposited a post dated check before the date on the check or mailed the consumer a postcard, it might be difficult for them to prove they did not violate the FDCPA. Conversely, if the consumer’s claim is based on profane or obscene language a debt collector used during an unrecorded telephone call, it may be more difficult to prove a violation and the collector may not be willing to settle outside of court.
Collection Agency Being Sued
Another factor that can affect how long a case under the FDCPA takes to settle is the collection agency being sued. Many larger collection agencies assume that at some point an employee will violate the law and keep a law firm on retainer for such instances. Attorneys for these agencies are experienced in FDCPA claims and can keep them moving along quickly, or if the evidence suggests that they should settle, come to fast agreement with the plaintiff. Smaller or new agencies may not have much experience with FDCPA suits and might take longer to decide to settle or drag out the case in an attempt to fight the claim.
How Can I Settle My Case Quickly?
If you believe that you have a claim under the FDCPA and wish to settle it quickly, the best thing you can do is hire an experienced FDCPA attorney. Not only can experienced counsel move your case to completion in a more timely manner than you might be able to on your own, but he or she can most likely get you a better settlement that may include monetary damages, court costs and attorney fees, cessation of collection attempts, and in some cases a waiver of the debt the agency is attempting to collect.
If a debt collector or creditor is harassing or abusing you, or of you have filed a lawsuit against one and think you may need any attorney, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinAuto Fraud: Did The Auto Dealer Run Your Credit With Multiple Finance Companies Without Your Permission?
When your credit is run by an auto dealer for the purpose of obtaining financing for the prospective buyer, it is rarely run for the purpose of determining whether to finance the purchase by the dealer itself. The standard practice is to take a prospective buyer’s single credit application and shop it around to various financial institutions to find the best financing terms for the consumer and the dealer.
If, in fact, a buyer attempts to obtain financing from a ‘buy here, pay here’ type of dealer—i.e., where the dealer finances the vehicle purchase itself—the dealer should not run the buyer’s credit with outside institutions. Conceivably, doing so in cases where the buyer expects or has reason to believe that financing will be handled by the dealer would be without the buyer’s knowledge. For dealers that do not provide their own financing, notice to the buyer must be made and permission from the buyer must be dully obtained before the dealer can run a hard credit check either on its own or through outside finance institutions.
If you discover that a dealer ran your credit through multiple finance companies without your permission, there are a few things to consider:
- If there are multiple suspicious hard credit checks on your credit report and you suspect they were connected to an auto purchase, it is worth double checking if there is any doubt. If any of the recent credit checks was run outside the main window when the bulk of the credit checks were run, it should be checked to ensure there was not an incident of identity theft.
- If you are surprised to discover multiple credit checks around the time you financed a vehicle, it is worth double checking the finance document fine print, front and back. Car shopping is a notoriously stressful event full of bouts of waiting and negotiating, all followed by a lot of tedious paperwork. There is an excellent chance a first-time car buyer will get to the end of the process, including securing financing and driving their new car off the lot, without understanding quite a bit of the process that just took place. The buyer most likely was told their credit would be shopped around, and they most likely signed or initialed next to a written notice, affirming their awareness and consent to the multiple credit runs.
- If, however, there is nothing in writing and you do not recall anything about the dealer shopping your credit around, the dealer might well have violated the law. As such, you can and should confirm the dealer’s actions and report the dealer to the DMV. Reporting the dealer for its unlawful business practices does not necessarily confer any direct benefit on the reporter, but it can create or contribute to the buyer’s records on the matter and it can potentially bolster an administrative action penalizing the dealer and forcing it to correct its bad practices.
If multiple credit checks were performed without your knowledge, you can, of course, discuss potential recovery options with an attorney. Before considering whether to pursue legal action, however, you should check to see whether there is any actual damage. When credit is shopped around by, say, an auto dealer, the multiple runs are generally treated as a single credit check for the purpose of calculating your credit score. Assuming you intended to finance your new vehicle and expected or reasonably should have known your credit would be run at least once, there is likely no “cost” in terms of credit score calculation and, thus, no actionable damage.
For a better idea of your specific recovery options, consult with a consumer auto fraud attorney as soon as you suspect a problem.
by Paul MankinHas a debt collector or creditor sued you and failed to properly notify you of the lawsuit?
DEBT COLLECTORS AND CREDITORS ARE NOT ALLOWED TO SUE YOU WITHOUT GIVING YOU NOTICE THAT YOU HAVE BEEN SUED.
Has a debt collector or creditor sued you and failed to properly notify you of the lawsuit?
All lawsuits require proper service; meaning the plaintiff must provide the defendant a copy of the complaint against them and a summons, which tells them how and when to respond to the Complaint. While there are a few different options for proper service, the main one used in a new lawsuit is sheriff’s service. With this type of service, a sheriff’s deputy will personally deliver the summons and complaint to the address listed on the summons. If no one who appears to be at least 18 years old is home, the deputy will leave the documents on the door. Most sheriffs’ departments also mail a copy of the service documents. Once a person has been ‘served’ by the sheriff’s department, the sheriff will file a return of summons with the court, showing that it mailed and personally delivered a copy of the summons and complaint. The return will also generally say whether copies were personally handed to someone at the address or if they were left on the door. The other main type of service that may be used is certified mail. If a summons and complaint are mailed by certified mail someone at the address must sign for the documents and their signature is returned on a signature card to the court or to the person who mailed the documents. When the signature card has been returned to or filed with the Court, service has been completed.
It is not uncommon for a Plaintiff to have the wrong address for a Defendant nor is it unheard of for the person living at that address to accept legal service for someone else and then ignore it. However, if a Plaintiff cannot prove that the proper person was served, service it not complete and the Plaintiff cannot proceed to the wage garnishment part of the lawsuit.
Debt collectors and creditors may not care if they serve the proper person though, as long as it appears that service was completed or no one notices that it was not. This way, they can prevent you from responding and can go right to garnishing your wages. Not only does failure to properly serve a defendant notice of a lawsuit violate state rules of civil procedure, it violates the FDCPA and RFDCPA, which prohibit debt collectors and creditors from using any unfair or unconscionable means to collect or attempt to collect the alleged debt. Suing someone and not providing them with notice of the suite or allowing them a chance to respond in order to skip easily to garnishing their wages is clearly unfair.
Has a creditor or debt collector sued you and not properly served you with the summons and complaint? Contact our office today at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinHas a debt collector or creditor contacted you and not given you the “Mini-Miranda” warning?
DEBT COLLECTORS AND CREDITORS ARE NOT ALLOWED TO CONTACT YOU WITHOUT GIVING YOU THE MINI MIRANDA WARNING, OR A RUN-DOWN OF YOUR LEGAL RIGHTS.
Has a debt collector or creditor contacted you and not given you the “mini Miranda” warning?
We all know what the Miranda warning is. You have the right to remain silent, anything you say can be used against you in a Court of law. You have the right to an attorney and if you cannot afford an attorney, one will be provided for you. But, what is the “mini Miranda” warning? Most of us have heard it from a creditor or debt collector, it goes something like this: “this is an attempt to collect a debt and any information obtained will be used for the purpose of collecting such debt.” Just as a law enforcement officer is required to read you the Miranda warning before questioning you as a suspect, a debt collector or creditor must provide you with the mini Miranda warning of debt collection fairness in its initial oral or written communication with you, unless the communication is the form of a pleading filed with the Court. The federal Fair Debt Collection Practices Act (FDCPA) and California Rosenthal Fair Debt Collection Practices Act (RFDCPA) require debt collectors and creditors to do this. All communications after the initial communication from the collector also must state that the communication is from a debt collector.
The initial collections warning has been come to known as the “mini Miranda warning” because just as the Miranda warning informs a criminal suspect that anything they say may be used against them in a criminal proceeding, the mini Miranda warning informs a consumer that anything they say may be used against them in an attempt to collect a debt. For example, if, while speaking with a debt collector, you say that you have just started a new job at Company A and will not receive a pay check for two weeks and so you cannot make a payment today, the debt collector may then use the information that you are employed by Company A to collect on the debt. They can do this by obtaining a judgment as quickly as possible, before you leave Company A, and then getting a garnishment order so that Company A will be required to withhold a certain amount of your pay each pay period and send it to them.
The purpose of the Miranda warning is to inform a suspect that they have the right to not provide any information that may incriminate them. The purpose of the mini Miranda warning is to inform a consumer that he or he has the right to not provide any information that will assist the creditor or debt collector in collecting on the debt. If a debt collector or creditor has failed to inform you that you have this right, they may have violated the FDCPA and/or the RFDCPA and could owe you compensation.
If a creditor or debt collector has contact you and not given you the “Mini-Miranda” warning, call the Law Office of Paul Mankin at 800-654-9517 today for a free case review.
by Paul MankinIs Genpact Services, LLC calling and harassing you?
Genpact Services, LLC is a debt collection agency headquartered in Southgate, Michigan. It has been in business since 1997 and provides business services, including debt collection, to companies across the country.
Contact Information:
P.O. Box 1969
Southgate, MI 48195
Phone: 877-704-2248
The Better Business Bureau (BBB) and Consumer Financial Protection Bureau (CFPB) report no consumer complaints filed against Genpact Services, LLC in the last three years. Two consumers did however post reviews of Genpact Services, LLC on the BBB’s website. One reviewer alleges that the collection agency failed to credit the proper account for their payment and continued to report the account as delinquent to the credit reporting agencies. The other reviewer maintains that the company called up to five times per day and customer service representatives refused to identify themselves as debt collectors.
The Fair Debt Collection Practices Act (FDCPA), a federal law enacted to help protect consumers from deceptive, unfair, and abusive collection practices prohibits debt collectors from using certain tactics in order to collect on a debt, including failing to identify themselves as a debt collector and reporting false information to the credit reporting agencies. Other specific practices the Act prohibits include:
- Failing to provide debt validation to a consumer
- Falsely implying that a consumer can be arrested for not paying a bill
- Calling a consumer before 8:00 a.m. or after 9:00 p.m.
- Continuing to call a consumer after receiving a letter asking them to cease all contact
- Calling a consumer at work when it knows the employer prohibits this type of call
- Attempting to collect fees that were not provided for in the original contract
- Using profane, obscene, or abusive language
- Advertising a debt for sale in order to coerce payment from the debtor
The Act gives consumers a cause of action against a debt collector who has violated any of its provisions. A lawsuit filed under the FDCPA can result in the debt collector being ordered to stop communicating with the consumer, forgive the balance due on the debt, pay the consumers’ attorney fees, and even pay the consumer for each violation of the Act the court finds that it committed.
If Genpact Services, LLC is using any unfair, deceptive, or abusive practices in order to collect a debt from you, it is time to hold them accountable for their actions. Please contact our office for a free, no obligation consultation at 1-800-219-3577.
by Paul MankinWhat Evidence do I need to File a Claim Under the FDCPA?
Evidence required to support a claim under the Fair Debt Collection Practices Act varies based on the way that the Act was violated by the debt collector. Depending on the type of violations committed by the collector, you may need written evidence, audio recordings, or testimony of witnesses.
Written Evidence
If you received communication from a debt collector that may violate the FDCPA you will of course want to save it as evidence to support your claim. Other documentation that was not sent to you may be proof of a violation as well. Written evidence that the Act was violated may include:
- A published list of consumers who allegedly refuse to pay a debt
- An advertisement that the debt you owe is for sale
- A letter that threatens to take any action against you
- Any communication falsely made to look like it was approved or issued by a Court or government agency
- Postcards from the debt collector
- A letter that indicates that not paying a debt is a crime or falsely represents that you may be arrested
- Any letter that appears to be from an attorney, but is not
It is a good idea to save all communication you receive from a debt collector until your attorney can review it and determine if it violates the FDCPA and should be kept as evidence.
Audio Recordings
Voicemails and messages left on your answering machine can be good evidence of a FDCPA violation and should be saved for your attorney to review. You may need to transfer the audio to a flash drive, CD, or other media that can be sent to the debt collector’s attorney or played in court, if you have to have a hearing. You can also record conversations that you have with the debt collector if you know how to do this. If a collector is harassing you, it might be a good idea to find out how to record your conversations and begin doing so.
Even if you have not recorded any of your conversations with the debt collector and do not have recordings of messages that they have left, you might be able to obtain the collector’s recordings of your calls with them if you keep a log of the times and dates of the calls. An experienced attorney can help you do this.
Witnesses
Most FDCPA claims do not involve witness testimony, but if your claim involves the debt collector communicating with a third party about your debt, you might need that third party to testify about those communications.
If a debt collector or creditor is harassing or abusing you, or of you have filed a lawsuit against one and think you may need the help of an attorney, please contact our office at 1-800-219-3577, for a free, no obligation consultation.
by Paul MankinHas a debt collector or creditor threatened to sell a debt you allegedly owe and told you that the sale of the debt would deprive you of any legal defense or claim?
THE SELL OR TRANSFER OF A DEBT DOES NOT DEPRIVE YOU OF YOUR LEGAL RIGHTS AND COLLECTORS ARE NOT ALLOWED TO TELL YOU THAT IT WILL.
Has a debt collector or creditor threatened to sell a debt you allegedly owe and told you that the sale of the debt would deprive you of any legal defense or claim?
Creditors and debt collectors are not allowed to use deceptive means to collect on a debt, and telling you that you will lose any of your defenses to payment of the debt is deceptive and a violation of the law. Debt collectors are also prohibited from telling you that you will lose your rights under the Fair Debt Collection Practices Act (FDCPA) once a debt is sold or transferred, as this is not the case.
Regardless of how many times a debt is sold or transferred, a consumer retains the same legal defenses and protections offered by the FDCPA and the Rosenthal Fair Debt Collection Practices Act (RFDCPA) that they would have if the debt were never sold or transferred.
Some of these defenses include:
- The debt has been paid
- The amount of time allowed by law to collect on the debt has expired
- The debt has been discharged in bankruptcy
- The debt does not belong to you
- The amount of the claimed debt is incorrect
Protections offered by the two Acts include:
- The right to receive verification of the debt
- The right to not be abused, harassed, or annoyed by a collector
- The right to dispute the debt and stop collection calls
These lists are not exhaustive and do not include all of your legal claims, defenses or protections against a debt collector.
If a debt collector or creditor has threatened to sell a debt you allegedly owe and told you that the sale of the debt would deprive you of any legal defense or claim, please contact us for a free, no obligation case review at 1-800-219-3577.