So, you’ve been served and you’re afraid of walking into the courtroom, facing the judge, and even worse, facing the lawyers the debt collectors have hired. You are not alone–most people don’t realize that debt collectors almost always win in court, simply because consumers don’t show up for their scheduled court appearances! And why don’t they show up? Many reasons–fear, confusion, or the desire to avoid further confrontation with the debt collectors.  Often, consumers have suffered weeks and months of abuse or harassment by debt collectors, and the thought of being subjected to more harsh treatment in a courtroom is just too much to bear.

It is perfectly normal to feel nervous, afraid, or intimidated at the thought of walking into a courtroom–especially if you’ve read in the news or heard from others how horrible the debt collectors and their lawyers can be.

But it is imperative that you appear or hire an attorney to appear for you, or you may forfeit your rights!

There are actions you can take to help you prepare for your court date so that you aren’t so stressed:

• Consult with a consumer attorney

• Visit the courtroom before your appearance so you’ll know where it is, how to get there, and what it is like

• Make sure you understand your rights as a consumer

• Plan to take a friend or family member with you for moral support

Also understand that if you retain the services of an attorney, you may not need to appear in court at all. If you choose to consult with a consumer attorney regarding your summons, be sure to ask if this is a possibility for you in your specific situation.

Unfortunately, it’s not uncommon for shady debt collectors to attempt to include various fees, interest, charges, expenses, balances, and more to consumers’ accounts when filing debt collection lawsuits–and no surprise, this is often illegal.

According to the Fair Debt Collection Practices Act (FDCPA), “demanding interest, surcharges, legal fees or collection fees that have not been agreed to, incurred or are not permitted under state or federal law.” So, attempting to collect anything other than the original debt incurred may be a violation of the FDCPA.

Then again, depending on state law and what the original credit card contract actually did specify, these additional fees may be allowed. It can be hard to determine if surcharges are legal  without a careful examination of the paperwork–a consumer attorney experienced in debt collection lawsuit defense will most likely review all paperwork for suspicious surcharges and added fees.

I will certainly be interested in the outcome of the MI class action lawsuits filed, as there is currently quite a bit of grey area in their state’s garnishment court rule regarding the issue at hand. In the meantime, I will continue to keep a close eye on debt collectors’ surcharges as I review my clients’ paperwork.

photo credit: www.whitespark.ca

Debt collectors continue to get creative and come up with new ways to attempt to collect debts. With technology changing and evolving at such a rapid pace, debt collection via cell phone, text message, twitter, facebook, website, email, and more are all to be expected. Consumers must be cautious and wary of encounters they may have with unknown parties via these technologies, and realize that many if not most of these methods of contact are in violation of state and federal laws, like the FDCPA and TCPA..

Now, to specifically address text messages from debt collectors. Perhaps you’re wondering: “Can a debt collector legally send me a text?” Maybe. Maybe not. As with many new technologies, the law is not completely clear cut regarding the text message issue. Luckily, the laws are not at all vague when it comes to the basic rules of consumer debt collection. The FDCPA, the TCPA–these federal laws include the following rules that must be followed when debt collectors are attempting to collect debts, and most would be challenged to successfully follow these rules when attempting to contact a consumer via text message about a debt:

• A debt collector cannot reveal or discuss the nature of a consumer’s debt with third parties (except spouse or attorney)
• Debt collectors must identify themselves as debt collectors in every communication
• A debt collector must state that the communication is an attempt to collect a debt

So, the debt collector would have to state in the text that the communication is an attempt to collect a debt, and identify that the company sending the text is a debt collector, BUT at the same time, cannot reveal or discuss the consumer’s debt with any third party.

This would be pretty tricky to pull off in a text message, wouldn’t it?

• How on earth will the debt collector include the required information AND additional information convincing the consumer to respond regarding the debt in a short text?
• What if the text message is sent to the wrong number–if someone has changed phones? Now a third party has inadvertently been notified of the debt!
• What if a consumer shares a cell phone with another family member, or a roommate? Again, the debt has been revealed to a third party!

As you can see, it is not easy for debt collectors to comply with the law when attempting to collect a debt by contacting consumers by text message. At this point, the practice does not seem to be widespread in Florida, and the recent $1 million fine of a California-based debt collection agency for FDCPA violations via text message will hopefully deter other shady debt collectors from adopting the practice.  With that said, if you or someone you know is being harassed or abused by a debt collector, whether by cell phone, text message, telephone, or mail, contact a local consumer attorney to learn more about your rights and protections.

photo credit: sxc.hu/bvdwiel

For consumers receiving disability benefits, or Supplemental Security Income, this can be stressful and terrifying.

So first, let me reassure you–your disability income is exempt from creditors, with a few exceptions (i.e. back taxes, child support, some student loans.)

If a bill collector is contacting you and claiming that your disability benefits are at risk, contact a local consumer attorney immediately. These threats and lies are a violation of the Fair Debt Collection Practices Act (FDCPA) and are punishable by law.

In addition, if your disability income has already been garnished by a debt collector, act fast! A skilled consumer attorney can help reverse the garnishment and your disability funds will be reimbursed.

“Robo-testimony.” I like that–a phrase that describes the deceptive act of a credit card company employee testifying in court that certain standard paperwork is legitimate and accurate, even though the employee on the stand has no knowledge of the paperwork.

Let me tell you about robo-testimony, because I encounter it in debt collection trials here in Miami. When credit card companies are asked to send a witness to verify the validity of documents in court, they don’t send the records administrators that actually works with the records on a daily basis. Instead, they send a “representative” to testify. So when I ask the following questions in court, the “representative” suddenly has a problem. Questions like:

• “have you ever been in the records administration office?”
• “what computer system do the records administrators use?”
• “can you walk me through the process of creating these records?”

The “representatives” can’t answer these specific questions, because they don’t actually work with the records!. They are good only for “robo-testimony”–they will say that the records are valid, they will say that the amounts are accurate, they will say whatever their company tells them to say. But I know, and the frustrated judges know, that they have no true relationship with the records in question, the debt in question, the case in question, or the consumer being sued–the “representative” is merely a talking head.

The articles make other good points:

• the culprits here are the big guys: American Express. Discover. Citigroup. Too often, it is suggested that dirty debt collection tactics are employed only by renegade debt collectors, and that *most* debt collectors are on the up-and-up. Not So!
• credit card companies and other debt collection companies are filing lawsuits based on faulty, nonexistent, or incorrect documentation and paperwork
• one article estimates that “an estimated 95 percent of lawsuits result in default judgments in favor of lenders.” Remember–don’t ignore a summons or you will become part of the 95 percent!

And the most compelling paragraph in the article, that should encourage any consumer being sued by a debt collector or credit card company to pick up the phone and contact a local consumer attorney immediately:

Many judges said that their hands are tied. Unless a consumer shows up to contest a lawsuit, the judges cannot question the banks or comb through the lawsuits to root out suspicious documents. Instead, they are generally required to issue a summary judgment, in essence an automatic win for the bank.

“I do suspect flaws,” said Harry Walsh, a superior court judge in Ventura, Calif. “But there is little I can do.”

photo credit: sxc.hu/squidonius

* Can a debt collector call from “unknown number”?
Yes. This is legal. What a debt collector cannot do, however, is call from any number and try to mislead when the call is answered. Identifying themselves as “Agent Blankety Blank” or “Officer Such-and-Such” when someone answers a call is a no-no, because it is misleading–it sounds like an FBI agent or a police officer is calling! And that, my friends, is deceptive. Leaving voice mails under these bogus names is just as deceptive, so save those voice mails, and contact a local consumer attorney.

* Caller ID shows that the same debt collector calls every day. Can they do that?
Yes. As frustrating as it might be, debt collectors can call once, maybe even twice a day, as long as they are calling after 8 AM local time and before 9 PM. Currently, there is no “magic number” for how many calls a day constitute harassment. However, if a consumer answers a call and requests that the debt collector stop calling, or indicates that he/she has no ability to pay, those daily calls should stop. If the daily calls continue, this could be a violation of the FDCPA. In addition, if caller ID shows 3+ calls a day from a debt collector, begin keeping a call log, and save any voice mail messages. In either situation, contact a consumer attorney.

* Can a debt collector call my boss/my mom/my ex?
Yes, ONE TIME, and for ONE REASON ONLY–to attempt to acquire your contact information (phone number and address.) The debt collector can call ONCE, and is not allowed to tell the third party that a debt is owed.

That said, debt collectors often push the envelope, shall we say. Examples:
– the debt collector calls the third party more than once
– the debt collector asks for more information than allowed by the FDCPA
– the debt collector harasses and threatens YOU by saying something along the lines of “If you don’t pay this debt, I’m going to call your mom/your boss/your best friend and tell them you don’t pay your bills!”

If someone in your life is being called repeatedly by a debt collector about a debt that you owe, please email them a copy of our call log. The third party should ask the debt collector to identify him/herself and the company name, then write this and other information on the call log. Contact a local consumer attorney with the information.

* Can a debt collector sue me without warning me?
Yes. In fact, in many cases it would be considered a violation of the FDCPA if a phone clerk at a collection agency did suggest that if the debt remained unpaid, a lawsuit would be filed. (This could be considered a “threat”.) So, it is very likely that no warning will be given if your case is slated for a lawsuit–a summons is your notice.

* Can a debt collector look for information about me on my Facebook page?
Yes. a debt collector can nose around on the Internet as much as he or she likes. If you make personal information available and a debt collector finds it, they might begin using it. This can be dangerous for the debt collector though–while playing amateur Facebook detective is allowed, using the information that is gathered could lead to a violation of the FDCPA. In addition, a debt collector cannot contact you via social media (they can look around your Facebook page, but they certainly can’t email to it or post on it. For all you early adopters, that goes for Google+, too

photo credit: sxc.hu/coscurro

“Class Action Lawsuit Alleges Collection Agencies Credit Card Offer for Debt Repayment Contains Multiple Fair Debt Collection Practices Act Violations”.

I was angry when I read details of the extensive trickery by the debt collectors involved in this case, and happy to read that the class action suit continues to move forward.

You can read the full press release here, but in essence, it explains that a class action lawsuit has been filed against debt collectors for sending deceptive correspondence to debtors.

One of the dirty tricks listed was that the mail pieces looked almost identical to typical marketing pieces sent by credit card companies offering pre-approved credit to consumers, but the offer extended was actually part of a debt collection scheme, and on top of that, may have led to consumers unknowingly waiving certain FDCPA rights. From the press release:

According to court documents Plaintiff Mark Myers received a mailed communication on July 12, 2010 with an offer from NCO Financial Services and GFS Financial Solutions that stated in bold print at the top, “Transfer your debt to a Pre-Approved+ MasterCard®!” The average consumer receives numerous credit card offers in the mail each month and may have perceived this offer, which was an attempt to collect a debt on behalf of the defendants, as a typical credit card application/offer, or junk mail and tossed it in the trash, and in the process, thrown away a communication that triggered specific rights under the Fair Debt Collection Practices Act.

Also of note, the required written notice that the correspondence is from a debt collector (this notice must be easy to see and easy to read) was neither easy to see or read, as it was buried in fine print on the back of the mail piece.

None of my clients have shown me correspondence like this, and there are probably two reasons:

• First, the debt collectors did a pretty good job with this elaborate, deceptive letter full of “dirty tricks.” If their marketing team were writing Hollywood caper film scripts instead of spending so much time trying to deceive consumers, they’d be famous for something other than this class action suit! (But sadly, the money probably wouldn’t be as good.)
• Second, and most important in my opinion– consumers being contacted, and especially harassed, by debt collectors often want it to all just GO AWAY. They sometimes make the mistake of ripping up and throwing away the letters they receive from debt collectors. Many times, they toss the correspondence unopened. These consumers choose to bury their heads in the sand until they reach a breaking point of some sort. When these consumers reach me, I wish I had been able to give them this very important message before they trashed all their so-called “junk mail” from debt collectors:

PLEASE–save all written correspondence that you receive from debt collectors!

What you consider “junk mail” might become a valuable tool for your consumer attorney if you find yourself fighting harassment, garnishment, deception, or any of the many other unfair debt collection practices detailed in the FDCPA. Harassment, abuse, and deception don’t just occur by telephone. The “dirty tricks” debt collection tactics can be found in your mailbox too. Don’t throw away your proof!

Remember–if you feel that you are being harassed, abused, or deceived by a debt collector, contact a local consumer attorney to discuss your situation, ASAP.

photo credit: sxc.hu/avanzero

So, a relevant question in Miami is: can debt collectors sue a consumer if he or she leaves the country to reside elsewhere?

My answer: Yes. And no.

Why I say “yes”: If the company that owns the debt in question decides, based on the paperwork they possess and the procedures they have in place, that the debt is most likely to be successfully collected by going the lawsuit route, they will begin the process of suing.

Much of what takes place in filing a lawsuit is based on paperwork and computer records (regardless of how accurate or substantial.) Sometimes, when a debt collector decides to sue, the consumer won’t even know until there is a knock at the door by a process server with the summons to court, OR if the consumer happens to voluntarily contact the debt collector.