A month or two ago Tom Martino interviewed Wayne Allard R-Colo. on his radio talk show about how consumers were getting shafted by credit reporting agencies and credit scores. Wayne was so upset about the callers stories that he was going to craft some legislation to address this issue. I about fell out of my chair when the Denver Post on page 3C August 28, 2001 had a headline "Allard-Schumer bill would disclose credit score errors". Much to my dismay I really couldn't find any links to point you to except the actual newspaper article today. Perhaps in a couple of days this will show up on internet search engines. If anybody can find this info on the net please post the link. Here are a couple of samples of what Tom Martino has to say about credit. If he isn't in your radio market please see his web site at www.troubleshooter.com COLLECTORS MUST FOLLOW THE LAW by - Tom Martino ------------------------------------------------------------------------ The Fair Debt Collection Practices Act (passed in 1978) is supposed to protect us against unscrupulous collectors who use abusive, deceptive and shady methods. Here are some of your rights under the law: After contacting you the first time, the debt collector has five days to send written notice specifying how much you owe and how you can protest the debt. Debt collectors may not threaten you or use violence, obscene or profane language. They canâ??t call you repeatedly with the intent of annoying or harassing you and they must always identify themselves. They may not publish the names of people who refuse to pay their debts. They cannot make false or deceptive statements. They cannot represent themselves as attorneys (unless they are attorneys). They cannot imply that your actions are illegal or that you are committing a crime by not paying or avoiding their calls. They cannot threaten you saying they will seize your property or garnishee your wages or that you will be arrested if you do not pay. They cannot call you before 8 a.m. or after 9 p.m. They cannot call you at work if they know your employer prohibits you from receiving these types of calls â?? so be sure to tell them if calls at work are prohibited. In general, Collectors cannot act in an unfair or unconscionable way to collect a debt â?? this may have to be determined by a judge. Here are some examples of unfair tactics: * Depositing a post-dated check before the date on the check. * Calling you "collect". * Sending you a postcard that can be read by anyone without opening an envelope. * Calling friends, neighbors, employers or any third party and disclosing to them that you owe a debt. * Calling you or any third party after knowing you are represented by an attorney. ENFORCING THE LAW Write a letter to the collector telling him or her to stop contacting you. Send it certified mail, return receipt requested. Collectors who receive this type of letter may not contact you again, unless it is to take specific legal action â?? like serving you a summons to appear in court. If the letter doesnâ??t stop them, you can sue the debt collector for violating the law. If you win, you can recover actual damages plus an additional $1,000 for court costs and attorneys' fees. The Federal Trade Commission enforces the Fair Debt Collection Practices Act. You can call 877-FTC-HELP to report a problem. State authorities may enforce state laws regarding debt collection, so check with your stateâ??s Attorney Generalâ??s office. AN IMPORTANT NOTE: The Fair Debt Collection Practices Act applies only to third-party collectors hired by creditors to collect debts. It does not apply to creditors collecting their own debts. State collection laws may or may not have authority over creditors collecting their own debts â?? so check with your Attorney Generalâ??s office. This is just a summary of the Fair Debt Collection Practices Act. To read the actual law check out the Federal Trade Commissionâ??s web site at: www.ftc.gov. COMMON COLLECTOR TRICKS by - Tom Martino ------------------------------------------------------------------------ Many collectors are not satisfied to follow the law when collecting debts. Some unethical collectors find it easier to use certain tricks to get results. Here are some common tricks they may use. Donâ??t fall for the following: * Gutter Service â?? This is a term used by collectors and process servers who donâ??t want to bother notifying consumers that theyâ??re being taken to court. Itâ??s easier for them if you donâ??t know, and therefore donâ??t show up. Then they can get a default judgment against you. Once they get a default judgment, they can garnishee your wages or place liens on your property. By law, everyone has a right to tell his or her side of the story in court. Thatâ??s why people must be "served" with a summons notifying them they have a court action against them. That gives us all a chance to defend ourselves. In some cases, collectors donâ??t want you showing up. They may they have a weak case, possibly a lack of evidence, or maybe no case at all. They know they would lose if you were there to defend yourself. Therefore, they lie to the courts. They claim you were served, when indeed you were never served at all! TIP: If you find there is a default judgment against you and you were never notified of your court date, go to the courthouse and look at the case file. Look for a document called: "Return of Service". This is an affidavit signed by the process server showing where and when you were served. If you find it is in error, contact the presiding judge about it or see an attorney. * Hallway Settlements â?? This is another trick used by collectors to get default judgments against you. Lets say they do serve you and you show up on the day of the hearing. A lawyer meets you in the hallway and offers you a great settlement. Perhaps youâ??re being sued for $2,000 and you feel you have a good argument against the debt. The collection attorney says heâ??ll take $100 to settle everything! For that amount of money you are willing to settle. You pay him the money and leave â?? thinking the matter is settled. Meanwhile, he goes into court and tells the judge you didnâ??t show up. He gets a default judgment and you end up owing the whole thing anyway! TIP: If you do settle debts make sure you get complete written documentation marking the bill paid in full. And if you settle at in courthouse hallway on the day of the hearing, make sure you still appear before the judge to have the case dismissed. * Extending the Debt â?? All debt collection carries a "Statute of Limitation", after which you cannot be sued for the debt. The length of the statute varies from state to state. In some cases, if there is activity on the account, the statute starts all over. Some collectors may resurrect old debts and realize they have either run out of time or are getting close to the limitation. To get the debt extended, they may enter into a new agreement with you to accept a smaller amount of money. That would obligate you all over again â?? when in reality you were already in the clear. Another trick is to get you to make a small payment as a gesture of goodwill with the promise they wonâ??t bother you anymore. That small payment may start the clock ticking all over again depending on the circumstances. TIP: Know the Statute of Limitations in your state. * Ghosting â?? This is the most deceptive trick of the trade. It is a practice where collectors go into their old records and pull out bills that have already been settled. They then start bugging you all over again â?? perhaps years later. The reason? They are hoping you didnâ??t keep records of the payoff or settlement. They can then intimidate you into paying the bill again. This is especially effective when you are about to buy a home or a car and you need your credit cleaned up. TIP: Keep all records of paid accounts and debt settlements. I hope this was helpful. M
I forgot to say that Tom is putting a class action law suit against the CRA's If you feel you have been screwed by them please contact him. M
Super post Mike, I for one would never have imagined some of this stuff, at least I won't fall for those if I'm ever taken to court. One question, how is it that the creditor can tell the judge you were served if you weren't? Don't you have to sign when its handed to you? If the process server just has to sign it, how are you going to prove to the judge that it was not served on you? Is it just your word against the process server? If thats the case won't the judge take the word of the creditor and the process server over your word? I admit my brain is fogged, and getting foggier all the time it seems. LOL tml
Super post Mike, I for one would never have imagined some of this stuff, at least I won't fall for those if I'm ever taken to court. One question, how is it that the creditor can tell the judge you were served if you weren't? Don't you have to sign when its handed to you? If the process server just has to sign it, how are you going to prove to the judge that it was not served on you? Is it just your word against the process server? If thats the case won't the judge take the word of the creditor and the process server over your word? I admit my brain is fogged, and getting foggier all the time it seems. LOL tml
I have a question. Recently a friend of mine discoverd. By accident. That she had two default judgements with attached liens. I don't know what they attached since she has nothing. Both court records claim that she was served via the mail to her last known address. Well she was living at the last know address. Never recieved anything. The documents do not state when this was sent, by who or to what address. One case the certified doc wasn't even signed. One case was for a substantial amount. (1)Shouldn't she have been served in person? (2)Even if she gets it vacated. Can they immediately sue again? The Sol on both of these are up the end of Oct. (3)Would that even matter since they began the suit before the sol was up? Thanks for any info. I will pass it along to her. The attorney she talked to wasn't to much help. Becky
I have seen cases where the server leaves an envelope taped on the front door. Who's to say a neighborhood child did not remove it and destroy it I have been a witness to this in a former apt. complex in Ala.
Great post, Mike, but let me make one correction: You CAN be sued after the SOL period has passed. The SOL can only help you if you show up in court (or file a motion to dismiss) and actually argue that the alleged debt is now subject to SOL. If you don't, the plaintiff wins. Saar
A lot depends on the state laws: 1. Some states allow service by mail to the last known address - usually it is by certified mail - if the certified mail wasn't signed for it certainly seems like an opportunity to challenge the validity of the service. 2. If she files a motion to vacate, the creditor has to be notified. If they show up and the case is vacated, they may very well serve her immediately and in person to have a valid judgement entered. 3. This will depend on whether the judgement(s) are vacated or not.
