I was involved in a fire incident at my apartment, and the complex suffered 48,000 in damages. I had an attorney try to settle for 2,000 since i am judgment proof. (I am in NC and wages cant be garnished) Their attorney got back to my attorney and told him that the apartment complex would not accept anything less than 24,000 ( 50 % )... Their attorney even admitted that they were not realistic in their demand, but he suggested that the apartment complex might refer this case to a collection agency. My attorney wrote this to me "In any event, I would not recommend you do anything else unless you are sued. You do need to be aware that a report of this to a collection agency could adversely affect your credit, but there is not anything that I am aware of that can be done to prevent them from referring the matter for collection. I do not beleive it is worth the cost to pursue any further legal action at this time." Now, can someone please advice me how to best deal with this situation??? If collection agency contacts me, do they have the right to recover from me without having a judgment? I understand this is different from credit card debt, and no liability has been established yet... WIll collection agency have to SUE ME to recover this? and if they do contact me, do I send them a lett of VALIDATION? please help how to deal with them?
And also, in this case, does a collection agency HAVE TO PROVE IN COURT that i am liable? If this matter is referred to a CA, who do i owe?? OC or CA? thanks
No, they did not have insurance, and it seems like they will refer this to a collection agency. But if the landlord has not sued me yet, and just submits this to a collection agency, what RIGHTS does a CA have without a judgment??? do they need to validate debt? and can a CA validate debt without judgment??? again, i believe they cant validate the debt just by saying that i owe my landlord 48,000 ( this being different from credit card debt) any suggestions, comment, will be greatly appreciated. I really hope you guys can guide me in this matter, since this boear is all about dealing with credit and collections
Landlord/tenant relationships are very different than normal creditor/debtor relationships. You really need to research your own state landlord/tenant laws to understand just how different they might be. I think he was very negligent in his relationship with you if he did not have insurance and in your state he may be required to have insurance and he may not. You will need to check your state laws to find out about that too. Up until recently landlords had free rein to do almost anything they wanted to but the courts are now getting tougher on them and if they are demanding money from tenants they may be required to fully comply with FDCPA just like any other creditor. If they are only demanding possession of the property and no money then they are not subject to FDCPA. Once they turn it over to a collection agency or an attorney then they lose all landlord immunity under FDCPA. So you need to research your state landlord/tenant laws first. They are easy to understand.
What i am trying to understand is if the landlord refers this to a collection agency, does a collection agency need to provide some sort of debt validation like a copy of a judgment.... because the landlord has not sued me, and their attorney implied to my attorney that he did not intend to bring a suit since he thought it would be pointless since i am judgment proof. I dont know what to expect now. I am assuming a collection agency WILL NOT buy this from them, since a liability has not been established yet. So they will attempt to collect on their behalf but do they have the right to sue me, or the landlord has to sue me.... how does this work...any experts out there? what is the best course of action i need to take. It appears they dont want to sue to avoid extra expenses, but according to their lawyer, they might be submitting this to a collection agency.... does a CA even have a right to collect w/o a judgment? Does a CA have to provide some kind of proof or a document establishing debt between me and the landlord, and short of the judgment, what would be such a document? thanks
Re: Re: Need help with collection Yes. If the landlord has not sued you then there is no judgment so noone can provide you with a copy of a judgment It would be very strange for you to actually be judgment proof. Almost noone is judgment proof. It might easily be that you cannot be garnished for any number of reasons but it is unlikely that you are judgment proof. So if you are garnishment proof then you are also judgment proof for all practical purposes. The explanation of all that is pretty involved and superfulous as well so we won't go into that. A landlord does not have to establish liability in most cases. All he has to do is claim it and most small claims judges will buy it even if it is untrue in some parts. That's not fair but that is sometimes the way it is. The collection agency can have their attorney bring suit but it usually has to be in the name of the plaintiff and then collector has to take an assignment of the judgment so that they can proceed to collect on the judgment on behalf of the landlord. Different jurisdictions do it different ways sometimes but that is generally the way it works. The collection agency does not have standing to sue unless they have actually bought the debt and has an assignment from the landlord. A power of attorney in net effect. It is going to be tough to try to do much with it until someone actually makes a claim against you, be it the landlord or an attorney or a collector. Yes If you demand it they do. In this case it would have to be a statement from the landlord claiming a loss and showing what it was for and how much. If it is a reputable collection agency they will probably want documentation of the landlords losses as well as how he thinks that you are responsible for it. A reputable collection agency will usually demand much more proof than they would from a bank or a lending institution or a department store. Personally, I would not take a claim from a landlord without a lot of proof and documentation in a case such as you are describing. I would want to know what you did that caused the fire and I would want documentation from the fire department records to back it up and those records would have to be pretty specific in stating that you may have deliberately caused the fire. There are too many slumlords out there to take chances with them.
Re: Re: Need help with collection THanks for your reply. I really appreciate it. Basically if I get a letter from a CA and send them a cease and desist order, and if they have NOT PURCHASED this debt (and since there is no judgment, i cant imagine how would they purchase it) they would not be in a position to sue me, am I right? That means that they have to get back to my landlord and ask the LANDLORD to sue me first and then assign the judgment to them? My understanding is that the landlord does not want to spend any more money on this case and decided to just get this matter to a collection agency. I have not admitted liability and without court, i dont think i really OWE LEGALLY this money to them (48K).... So if I am denying my liability for this fire, without a judgment, can there be DEBT? especially to a CA?
Re: Re: Re: Need help with collection Sorry I took so long to get back to you but I am out in the middle of Lake Wichita on a house boat right now catching a mess of fish. LOL I would recommend that you never send any collection agency a cease and desist order. If you do that you leave them little other option than to sue you. There are other options but if someone sent me a cease & desist order I would immediately file suit. Most other CAs would also be likely to do the same. They don't have to purchase the debt to sue you and they don't need a judgment to sue you either. If they had a judgment they would have already sued you. They have to sue somebody before they have a judgment. No, that isn't the way it works at all. They simply get an assignment from the creditor (your landlord in this case} and they can sue if he gives them permission to do so. Then they simply file in his name, taking another type of assignment on the judgment so they can collect instead of the landlord. If you don't understand how the process works it can be a bit confusing. That very well might be. I really can't tell you whether you do or not. I don't know how the fire happened and there seems to be a lot you haven't told us yet so I can't tell you what I think or what you should think without all the facts. Yes there can be. Makes no real difference about that either. If the landlord claims you owe it then you owe it unless a court of law says differently. I can see that you are all worried about this as you should be. If I were you I would go see a good attorney. I don't think you are likely to get the answers you need to defend yourself on this or any other messge board. I say you need to find a good attorney and let him give you professional advice.
Re: Re: Re: Need help with collection I am wondering a few things about this. You state the fire was your fault, were criminal actions brought against you? Were you ordered to pay restitution, jail time, etc? What makes you think that the landlord is going to sue you for judgment. And, why do they not have fire insurance for their own building? You might want to check into laws regarding this for your state. You did not say what you did to cause the fire, was it intentional, an accident, what? If intentional I would think you would have arson charges brought against you, if it was accidental I am thinking that the landlord is trying to get you to fork over the $ for THEIR lapse in fire insurance. You are jumping WAY WAY ahead of yourself in wanting to know how to deal with a collection agency. First, you'd have to be sued for judgment etc. IF the landlord turns it over to collections without obtaining a judgment, I'd fight it.. this all sounds a bit shady to me - sounds like the landlord is looking for a scapegoat. Just my thoughts on it, your best bet is to contact an attorney.
Re: Re: Re: Re: Need help with collection No, fire was started in my apt, and they are claiming negligence on my part, no criminal charges. Fire report said "misuse of equipment". It started from a lamp that heated and ignited my shirt. And then the water sprinkler system discharged a lot of water that damaged 3 floors below me..... Big mess Basically I went to a lawyer who contacted their lawyer and explained that I did not have any assets or wages that could be garnished (I am in NC) and tried to settle for 2K Their attorney got back to mine. Here is the what my attorney wrote me "I was contacted by phone by ATTORNEY in response to our offer to settle for $2000. He has indicated that his client will not accept less that 50 % of their damages, or approximately $24,000. I again reminded him that your were judgment proof, and that even if you were not, you could file bankruptcy to avoid liability for any judgment. He acknowledged that he fully understood, and admitted that he thought his client was not very realistic in their demand. He implied that he had no intention of filing suit against you in this matter, and suggested that his client might simply refer the matter to a collection agency. In any event, I would not recommend you do anything else unless you are sued. You do need to be aware that a report of this to a collection agency could adversely affect your credit, but there is not anything that I am aware of that can be done to prevent them from referring the matter for collection. I do not beleive it is worth the cost to pursue any further legal action at this time. So now if they refer this to a CA, my understanding is that they could spoil my credit history w/o even a judgment. I am trying to understand and find out if there is ANYTHING that i can do to prevent CA to place the negative item on my report, based on the fact that noone has sued me yet. When you said you would fight it, i dont even know what and who to fight and/or sue if they submit this case to a CA. Can I sue the landlord for wrongfully submitting this to a CA w/o obtaining judgment? there is gotta be some remedy. My lawyer suggest to do nothing until i am sued but they might spoil my credit history. If i am contesting liability what should I do? P.S. They said their insurance had 100K deductible and would not be using it.
Re: Re: Re: Re: Need help with collection I understand your fears. It is a large complex of apartments and those usually have the ability to damage your credit and don't hesitate to do so. Realistically, after reading what you say the attorney said I doubt that a CA would touch it either but one never knows. I sure wouldn't. If they do you would have real trouble trying to get it off your credit reports. Frankly I don't know what to tell you to do if they did get it put on your credit report. Maybe Sassy can give you some ideas. If Sassy does have something to offer I would listen to what she says. I think she is probably the most knowledgeable person on CN right now even though there are others who are also knowledgeable.
Re: Re: Re: Re: Need help with collection Let's back up a minute. You posted on this situation a few months ago, and we went on and on and on about all the "what-ifs". Now we're discussing essentially the same "what-ifs". It sounds to me (and others here) that your landlord is trying to screw you for their lack of insurance coverage. I remember from your last thread that their deductible was in the insanely-high category. You need to get the whole collection thing out of your head. That's the LEAST of what your problems will be if your landlord is actually awarded a judgement against you for $48,000. I'm not a lawyer, but the fact that your landlord's attorney is offering a 50% settlement indicates that their case is a weak one, otherwise they would go after you for the whole amount. You need to take a more pro-active approach from a legal standpoint. Find out what you can at lawguru.com, but more importantly, get yourself an attorney who SPECIALIZES IN LANDLORD/TENANT DISPUTES. Perhaps you can have your attorney file a "pre-emptive strike" - a lawsuit against your landlord for all the stress that you've been going through. If your landlord feels he has a strong negligence case, then LET HIM PROVE IT IN COURT! In any event, NyteAngel said it best: "You are jumping WAY WAY ahead of yourself in wanting to know how to deal with a collection agency. First, you'd have to be sued for judgment etc. IF the landlord turns it over to collections without obtaining a judgment, I'd fight it.. this all sounds a bit shady to me - sounds like the landlord is looking for a scapegoat." Instead, put your energies into letting the courts decide who is really at fault. Hopefully everything will work out in your favor. Sorry to sound so blunt, but hey, we've been through this before.
Re: Re: Re: Re: Need help with collection Thanks for the reply. They have this fire report, and i dont really have a lot of money to pay the lawyer to defend me. I think if they sue me, i would not be able to pay 5-10K to my lawyer to defend me, so i have to defend myself, and with the fire report they will most likely win I know they cant take anything from me, but this is very stressful and really dont want to be taken advantage of.
Re: Re: Re: Re: Need help with collection Another thing. It seems to me, according to THEIR LAWYER, they have no intention to sue, and want to push it off to a CA..... So here comes the issue. How do i challenge this if they dont sue me and just give it to CA AM i stuck with a CA then?
Re: Re: Re: Re: Re: Need help with collection If the landlord sends it to a collection agency then the matter is out of his hands unless he calls it back. If he can even get the CA to take it in the first place.
Re: Re: Re: Re: Re: Need help with collection You don't know that. It's for the courts to decide! Again, I recommend taking whatever legal steps you can. Again, check out lawguru.com for starters.
Re: Re: Re: Re: Re: Need help with collection What about YOUR LAWYER??? Again, I recommend taking whatever legal steps you can. Again, check out lawguru.com for starters.
Re: Re: Re: Re: Re: Need help with collection MY lawyer said not to do anything unless sued. which is not a very pro-active approach, unfortunately.
