Where do I go to file a complaint if an attorney collecting on a debt violated the FDCPA (809b)? I have all the documentation providing proof of this but the judge wasn't interested in it at all. Didn't seem to matter what the attorney had done and the judge granted his motion for judgement against me.
That's what I have pointed out in other threads here. The only thing most judges are interested in is the plaintiff's complaint and getting resolved in the plaintiff's favor if at all possible. What the judge is really saying is that two wrongs don't make a right. It just proves that it is better to be a plaintiff than a defendant therefore the best plan of action is to use your violations in federal court and in a separate suit.
So I have to file a law suit, not file a complaint with Attorney General or something? Well, since I now have a judgement against me, that leaves zero funds for hiring a lawyer ... so, in reality, the FDCPA doesn't mean much at all to the average consumer.
If he dismissed a counterclaim for FDCPA violations, your only recourse would be an appeal. Anything brought up in that lawsuitthat is decided upon is res judicata.
Well, that would depend on if the FDCPA counters were decided upon the merits or on a procedural defects. But, to answer the OP's questions, yes, you would have to institute a civil action against the attorney/firm if that is still available.
Ok ... yes, I can still file a civil suit and I've gotten pretty good at filing forms with the court, so I'm sure I can do that myself. Most forms can even be downloaded. But what do I ask for as far as monetary damages? I understand it is my responsibility to pay the debt, my concern is that my rights were violated and I get the impression this is normal proceedure for this firm. Can I ask to get back any interest from the time they failed to send me a validation letter and still pursued collection and also court costs since there wouldn't have been any if they had sent the validation letter instead of issuing a summons? I wasn't looking to sue them ~ I was hoping they would just be slapped with a heavy fine and make sure they don't continue operating as if they are above the law. But I do not want to just say, "ok, you're bigger than me so I'll let you get away with this.". This just is not right and I want to do something about it if possible.
You don't need any money to file complaint with the AG. (only 37 cents for the stamp, plus the cost of paper, envelope and a pen). That may or may not do you any good. The judgment does not force you to pay. It only says that you owe the money but nothing about your being forced to pay. They have to get a garnishment to force you to pay. Maybe they will do that and maybe they won't. Most judgments are never collected. Far less than half of all judgments nationwide are ever collected on. You might get lucky. In the meantime you can find help to learn how to fight and never have to pay up. So, you say that in reality FDCPA doesn't mean much at all to the average consumer. That's a pretty fair assessment of the situation. At least it is if you can't or aren't willing to take them to federal court and sue them there.
I was under the impression once there was a judgement they could tap into your checking account or come take your car, etc. That is not true? Even though there has been a judgement, should I contact the firm and try for a reduced settlement? (I would have done this had they ever sent a validation letter and all of this could have been avoided!) You said about fighting the judgement ... how do I do that? I thought it was all over now and they would just take what I didn't give them. Thank you all so much for your help. This would all be so much worse if I had no where to go for help and advice.
Some states do allow for pre-judgment garnishment under certain certain circumstances. Each state is different on that point but for the purposes of this conversation let us say that they can't garnish anything without a judgment and then moving the court for garnishment. With the proper garnishment in place they can garnish banks for your money but taking your car is a different matter except in Mass. where almost anything can and does happen including taking your car. Even there they are taking action to stop that practice due to the fact that the Boston Globe has been doing a lot of screaming about how judgment debtors are treated. You can always try for a reduced settlement. Might or might not happen. You have to file motion to vacate the judgment as being a void judgment. That means you have to find a reason to file such a motion. It isn't nearly as easy as many would like you to believe. There are plenty of people on the internet who teach how to do that but there are far more failures than successes. I know about many such cases. One that is ongoing right now is a couple who own a corporation known as Mobile Hydraulics Inc. Both the husband and wife were sued on a credit card debt by Chase. They were also sued on a foreclosure suit which has not yet been adjudicated because they filed multiple lawsuits on the lender and their attorney in federal court. Now another lawsuit will be filed for wrongful eviction by another company hired by the lender to go onto the property and "winterize" the home. That company is not only being charged with wrongful eviction but unlawful trespass as well. The lender is being sued for violations of TILA, RESPA, HOEPA and others. Those cases are being handled by an attorney who just won a huge settlement from the same company for doing the same thing. They are doing the credit card case pro se. They have a number of reasons to file multiple motions to vacate the judgment. First is that the husband was wrongfully joined in the original judgment. He isn't responsible for his wife's debt and he was not on the card. They don't live in a community property state so he has filed motion to vacate for misjoinder. Then the case was filed in the wrong county so she filed for wrongful geographical jurisdiction and will file in federal court for violation of FDCPA. She is also in bad shape because Chase garnished and she failed to appear for the assets hearing so now there is a warrant out for her arrest. In order to keep from getting arrested for contempt of court she also filed motion for injunctive relief from the garnishment until the court can hear the motions to vacate. They garnished her husbands corporation and he didn't reply to that either so now they have a judgment against his company for the whole of the debt. So he has to file for injunctive relief from that too. Will they win? That's anybody's guess at this time. If they lose on any of their motions they can appeal and at least tie things up for a very long time. The main problem they face is whether or not they can stay the course through all the problems and litigation. Learning how to do it isn't all that hard.
Just curious if this was one of those known to prey on mortgage borrowers such as Fairbanks Capital and its successor.
They aren't the only ones by far. Mortgage flipping, mortgage fraud and much more are big headaches for the mortgage industry these days. Brokers shaving points and generally misbehaving are also rampant. I'm sure you already know all about that.
Just as an FYI -- we had a judgment against us for $29K that a judge signed off of after we answered our interrogatories. Within 2 weeks, we were sent another interrogatory set of questions asking where I work, etc... Just be careful....... It probably depends on HOW MUCH the judgement is for!
Not necessarily. It can also depend on what type of judgment. Mortgage foreclosures for instance ends up as a judgment and the lender can go for a deficiency judgment after the sale is over and the house is sold but they usually don't. I may be wrong but some states may not allow them to go for a deficiency judgment after foreclosure. But they usually don't even in states where it is allowed. Evictions are also another type of case in which landlords don't always try to collect the monetary end of their judgment. That's probably because the renters often have little or nothing to go for or the amount is small. Most of the time landlords just want their property vacated and could care less about the money. Regardless, all judgments must be considered armed and dangerous.
I agree with you, Cap1!!! See, this is where we got into trouble!! Our DSC made it sound like, "so what, they win a judgement. doesn't mean they will get anything out of you. they'll settle faster". When we talked to our first lawyer shortly after, he told us we had to act quickly on our BK because they will put a lien against the house. The second BK lawyer said the same thing. ONE THING on our side is that the suit is against me....house is soley in my husband's name. We aren't late on our house payment (or any other secured payment for that matter). All I know is that due to that judgement, it's put us where we are. Once you get a judgement, too, they go after your wages as quickly as possible. At this point, they'll get their little piece since we are going with the ch13. Bottom line... you are right -- judgements are armed and dangerous!
So let me ask this: Once there'e a judgment, do they give you the opportunity to pay & then if you don't they put a lien on your house ... or do they just do that immediately?
It can go either way. I tend to think that they most often put a lien on your house or other property as quickly as possible and then go after more liquid assets such as bank accounts and wages. They don't go after vehicles all that often.
If I file a motion to vacate judgment, does that stop the process until my motion is decided by the court? If I pay instead, does that end things? If a lien has already been put on my house is it then removed or how does that work? Wow ~ this sure is ugly stuff. Doesn't seem like they play fair at all ... and then it seems the court just lets them get away with it.
No, it don't. If you want to stop the process until your motion is decided by the court you would have to ask the court to do that which, of course, they may or may not do. I'm sure the judge would want to at least glance over your motion to vacate to decide whether it has merit or not. If he thinks it does then he may grant you temporary relief. But you can never tell in advance how a judge is likely to rule. It should. If you pay or a motion to vacate is successful then the lien would be removed. Why do you say they don't play fair? There are two sides to that argument. You didn't play fair when it came time to pay them so why would they worry about what you think is fair? Let's say you owed money and was injured somehow and incapacitated for a long period of time. Is it unfair of them to want their money? They don't think so and if you were in their shoes you wouldn't think so either. The only thing that is fair is that you pay what is owed or suffer the consequences. That is the moral argument and it does have validity. But like everything else there is more than one viewpoint. We also have to look at it from a practical standpoint. If you are absolutely unable to pay then there needs to be a way to get relief. Government agrees with that stance and so does business and that is why there are bankruptcy laws. Bankruptcy doesn't solve the problems either for many people because they are so broke that they can't even file bankruptcy. What do they do? There are no perfect solutions to all the problems we face from time to time. When things go terribly wrong we simply have to do the best we can to come out of the disaster and somehow go on to make the future better. That's all we can do.
