Let me start out by explaining the situation. I was a freshmen at a college in Michigan and one day received an email threatening to be sued for illegally downloading music. I never downloaded music so I chose to ignore the email because I thought it didn't seem right to be sued in an email, especially when they pretty much demanded that I settle for $4000. I hear this a common thing now a days to target college students because they will be scared into settling and that's easy money for the record companys. I was surprised that the University could even give out my personal info without a warning, but they did. I ignored it and in the summer they sent a letter saying the same thing to my house address. It was then that I called them and told them that I never downloaded, but they paid no attention to me. Long story short I stopped talking to them because I wasn't getting anywhere and they ended up getting a judgment against me for $8000 in 2008. A few months ago they sold my case to a collection agency called Caine & Weiner. After I received the first letter from them, I wrote back saying I disputed the validity of the debt and requested all communication to be made through writing. Even though I had 30 days to dispute the debt, they still contacted me during that time wanting to collect. I also have been getting numerous phone calls on my cell phone, which I believe to be the collection agency even though they never leave a message, and I told them to not call me. Can I sue them for not respecting my rights if I can prove it is them calling? Is there anything I can do that they sent me another letter during my 30 day period to dispute it? Could anyone offer some advice as to what to expect from here and out? If I am able to sue them, how do I go about doing it? Do I need a lawyer? What are my rights? How long do they have to pursue the judgment? Is there any way to get out of the judgment? How likely are they to take me to court for alleged 10 songs totaling $8000 debt? Any help would be greatly appreciated!
If they have a judgment, they've already taken you to court. A judgment is a whole different ball game. It's not a collection--they've sued you and won, and are now seeking to enforce the judgment. How long do they have? It depends on the state. Often 10-20 years with a possibility of renewal. And once they have a judgment they can do things like garnish wages or bank accounts (if your state allows that). It's WAY too late for a validation letter.
Sorry to disagree with you Hedwig but that is simply untrue. No matter whether a judgment has been issued or not, no matter whether garnishment(s) have taken place or not it is still attempted collection and subject to FDCPA. There are several federal court rulings to that effect. (No, I don't have case cites handy.) If you read FDCPA it says that if a consumer demands validation within 30 days after the initial contact by a debt collector the debt collector must provide the consumer with information stating whether or not a judgment has been issued against the consumer. Notice that a judgment has been issued against the consumer (if applicable) is one of the 5 indices that must be included. So why would we think that post judgment collection efforts by a 3rd party debt collector would be excluded from FDCPA? I know of several cases in which judgment had been granted and garnishment of the defendant's wages or bank accounts had taken place and the debtor took the debt collector to federal court and won, thereby getting rid of the judgment in the process. Robbie O. of NY was just one of many that I know of who sued in federal court and won after state court judgment was granted. Mark M. of Rhode Island is another. Mark has won 3 cases against debt collectors and now has a case going against Sallie Mae for FCRA violations. Mark helped his aged father win in federal court after judgment. Mike M. of NM was another. The list goes on and on. Mike's case is interesting indeed. Mike first contacted me about 7 years ago. He was in a state of panic because a debt collector was after him for non-payment of Mexican income taxes in a local court. They wanted $3500. I asked Mike one simple question which was, ~What American court has subject matter jurisdiction over the validity of income taxes of another foreign country?~ He filed motion to dismiss for lack of subject matter jurisdiction and the case was instantly dismissed. Then he took the debt collector to federal court for 8 counts of FDCPA violations and they ended up paying him more than double what they were demanding in local court. Since then Mike has won 5 or 6 cases in federal court against debt collectors. He has also won cases in local courts after the first one and now has a case going against his home mortgage lender. That case has the attention of the FBI as well. Larry R. of Florida has won several cases against debt collectors in federal courts and is still involved in a mortgage case which has been ongoing for several years. So no, it isn't too late for this poster to send demand for validation just because judgment has been entered against him. It seems to me that this poster already has several violations that can be used to file suit in federal court. This poster can not only win in federal court but can also use the federal case to get rid of the lower court judgment as well and that is exactly what I think should be done. The nice thing about it is that with a little learning people don't even need a lawyer to do it.
How do you go about sueing in federal court? Thank you so much for reading my post. My two complaints against Caine & Weiner is that they pursued the collection during the 30 day period and have continued to call my cell phone on a daily basis(sometimes twice a day which is ridiculous) even though I requested all contact to be made in writing. How do I go about sueing for that? What is my next step? Would you recommend me getting a lawyer? Do you think for an $8000 judgment they are likely to garnish my wadges even though I'm still a student?
They have a judgment against you. You might be able to sustain an FDCPA action against them, but unless you have it in writing that you asked for validation within the 30-day window -- invoking your FDCPA rights -- you will not likely succeed. The judgment won't be overturned by an FDCPA suit. If your suit is successful, you will net only $1000 and possibly attorneys fees assuming the judge likes your argument. The $8000 judgment is earning the holder post-judgment interest, so the settlement cost is going up daily. Recently, a student contested such an accusation in a Federal trial and lost ignominiously, I think the fine was in excess of $250K, and the judgment and fine were confirmed on appeal. (The guy was found to have deliberately lied in his testimony.) Consider yourself lucky that the award wasn't higher. It is unlikely at this time that you could get the judgment reversed, so you are likely going to have to deal with this or subsequent collectors. Better, and cheaper to deal with it now than later.
Garnishing Wadges how does garnishing your wadges work? are they likely to come after me as a student? Is it worth it for a collection agency like Caine & Weiner to do that because doesn't it cost them money to take me to court as well? What does this do to my credit?
Once the judgment creditor obtains an execution order, they can garnish wages and attach bank accounts and other assets. The Federal limit on garnishment, I believe, is 25% of your take-home pay; states may set lower limits, but not higher. The employer deducts the garnish amount from the wages and sends it to the creditor. The only limit on attachment is that they cannot take exempt funds, e.g., SS income, retirement funds, disability benefits,etc. Banks will usually assume that all funds are attachable and you would be required to prove to the Court that they weren't. A judgment is on your CR; CAs can, and do report on their collection. Your CR may or may not reflect the collection activity, but the judgment will likely remain for the statutory period for reporting. Will they come after you? Depends a great deal on the financial profile that they can put together on you out of the records they can find. (With the execution order, they call you for a debtors exam which would be conducted under oath.) If they see you have the assets, then they will probably pursue the matter. $8K plus interest is an attractive payday for the CA, and the Plaintiffs are really out to get the message across that they don't like internet piracy. So you have two basic choices: Ignore them and hope that they go away, or deal with them to get some sort of arrangement going that you can live with. Either choice has consequences. Only you can decide what is best for you.
They can garnish wages as was posted below. This is a sum total that can be garnished regardless of how many garnishments may be in place so it is a first come first served situation. There are ways that you can sue yourself and get your own garnishment in place ahead of theirs so they can't get anything at all. [/quote] The Federal limit on garnishment, I believe, is 25% of your take-home pay; states may set lower limits, but not higher. The employer deducts the garnish amount from the wages and sends it to the creditor.[/quote]That's not quite correct. The garnishment goes to the court who distributes it to the creditor or assignee. Often it is not the creditor who filed the lawsuit and garnishment but an assignee who filed the suit in the name of the creditor. Yes, but the better approach is to sue the plaintiff and maybe the bank as well for violation of FDCPA and illegal garnishment. If you simply attempt to prove that the funds were exempt you have a real problem getting the funds back in most cases. Just depends on the judge in the case and your state laws. Some judges are very reluctant to go along with defendants in just about any situation. Not if you take them to federal court and make them vacate their own judgment. Once they do that you can dispute the judgment with the credit bureaus and it has to come off. If you have taken the proper steps to put your protections in place you don't have to tell them much of anything. Quite true but we should also be equally proactive to show that we are really out to get the message across that we don't like to be victimized and our rights violated. They aren't likely to go away and especially if you ignore the summons and complaint and don't do anything to protect your rights as well.
So far, the OP has not really presented any evidence that they have violated his rights. We do not have evidence that the OP has put in place the protection that his rights require of him. You are correct, the garnishment goes to the court until the period for challenge expires. Then it goes to the creditor. Either way, the garnishee doesn't get the money unless he establishes that the funds were exempt or the garnishment illegally obtained. I would have thought you would have understood that.
We do not have evidence that the OP has put in place the protection that his rights require of him.[/quote]We really don't have proof of much of anything I know very well how the system works. No problem there.
is sueing worth it? I do have it in writing that they did not respect my 30 day period for validation. Would I succeed in sueing? If I did win, you only think I'd net 1000 plus attorney fees or would that wipe out my judgment? how soon do you think collection agency's start looking at my financial profile? Would it be smart to transfer money? Any suggestions?
You can start a corporation and protect yourself from garnishment quite easily. Your corporation can sue you and get a garnishment in place before your creditors do.
Start a corporation I'm sure I have to do a lot of research and have a lot of catching up to do, but how can I as a college student start a corporation? I feel like I will need a lawyer to assist me with this whole process. In your experience, would a collection agency bite if I offered 25%-50% of the debt? Would it be best to start out by offering $1000 and negotiate? I'm worried that if I don't settle this, I will end up paying a ridiculous amount later in life. How long do CA's give you to pay before they would garnish your wadges/take you to court?
Setting up a corporation is not really a difficult process at all. Nobody needs a lawyer to do it for them. I did use a lawyer for the first 2 or 3 corporations I set up but learned how to do it all myself in the process. Theoretically speaking it is easy to set up a corporation, get a tax number for it and a corporate bank account all in one day. Practically speaking it depends on what time of the day you start and who you have guiding you. Lawyers simply won't tell you all the steps that you need to go through to set up all three of those things in one day. Also, they will not tell you how to get excellent credit ratings for your corporation in only 12 weeks either. Most of them probably don't know all the details of how to do those things but once you know them all it is a piece of cake. In my experience some collection agencies are capable of biting even 20 years after you already paid the bill and forgot all about it. They count on the fact that you no longer have any documentation and don't know that the statute of limitations ran out years ago so don't defend and just pay up a second time. A $1,000 for what? Each violation of FDCPA or FCRA that they have committed? That sounds about right to me. If you just want it to hopefully go away with as little trouble as possible then you can try to make whatever settlement the two of you can agree on. I would strongly advise that you don't give them any banking information in the process however. Can't answer that question. No way to know.
