Secrets Of A Debt Collection Lawyer

FORM FOR A SWORN DENIAL

2010-12-16T21:31:00.004-06:00

My E-Book HOW TO BEAT A CREDIT CARD DEBT LAWSUIT WITH THE SECRETS OF A REAL DEBT COLLECTION LAWYER offers detailed explanations, expert guidance and most importantly actual forms which will allow you to represent yourself and WIN. As an example, here is the Form for filing a SWORN DENIAL:

http://www.lulu.com/product/ebook/how-to-beat-a-credit-card-debt-lawsuit-with-the-secrets-of-a-real-debt-collection-lawyer/11927258

FORM TEN – SWORN DENIAL

IN THE (NAME OF COURT-SMALL CLAIMS, GENERAL SESSONS, CIRCUIT, ETC.) COURT FOR (LOCATION OF COURT)

(THE HEADING INFORMATION SHOULD BE COPIED FROM YOUR SUMMONS AND COMPLAINT)

___NAME OF COMPANY SUING YOU__

PLAINTIFF,

VS.

NO. (CASE NUMBER)

____YOUR NAME___________________________

DEFENDANT

SWORN DENIAL ON ACCOUNT

Comes the Defendant, after being duly sworn according to law, and says that he/she does not owe the account on which the Plaintiff has sued him/her and that the same is not true, just, nor correct for the following reason(s):

This is not a valid debt.

This is not my debt.

I did not sign a contract to be responsible for this debt.

I did not sign a contract with this plaintiff.

If I am responsible for this debt, the amount sued for is incorrect.

If I am responsible for this debt, it is barred by any applicable statute of limitations.

_____________________________________________________________________________

____________________________________________________________________________________________________________________________________________________________

______________________________________________________________________________

_______________________

DEFENDANT (Your Name)

Sworn to and subscribed before me this the

________ day of _____________, 20_______.

_____________________________________

(NAME)

Notary Public

My Commission expires on _____________________________________.

CERTIFICATE OF SERVICE

I certify that a true and exact copy of the foregoing has been served upon

___(Attorney’s name and address______________________________________________________

by proper mailing/hand delivered same on this the _______ day of _______________________,

20_______.

_______________________

DEFENDANT (Your Name)

http://www.lulu.com/product/ebook/how-to-beat-a-credit-card-debt-lawsuit-with-the-secrets-of-a-real-debt-collection-lawyer/11927258

DONATION REQUEST

2010-09-09T08:06:00.004-05:00

I've added a DONATION BUTTON at the top of this blog. I know your first thought is hey here's a rich lawyer trying to scam me out of some money. Well, I'd challenge you to read this blog in it's entirety and see that is far from the truth. On the contrary, rather than trying to get rich or even make a profit off this blog, its primary function is to provide vital information to people in real need. There is a ton of practical and more importantly, legally correct, information on this site. Also, I offer an entire book of information together with all the forms you need to fight debt collectors all for only $9.99. Once I pay publishing and other costs, this is a break even venture. I've seen less helpful guides and books written by non-lawyers offered on the internet for hundreds and thousands of dollars! So I hope you can see, this is not a get rich quick scheme. I am asking that, IF you are able, you click on the donation button and donate FIVE BUCKS. Your donation will allow me to keep this site up and running and add more resources for people just like you who need help and can't afford the thousands of dollars a lawyer would charge. So donate if you can and I thank you. If you can't, then help me out by referring some of your friends who are also in need to my site. THANK YOU.

Big Changes in Debt Relief Industry

2010-09-08T13:55:00.006-05:00

The ADVANCE FEE BAN. There are huge changes coming to the debt relief industry! I’ll give you the legalese first. On July 29, 2010 the Federal Trade Commission announced its amendments to the Telemarketing Sales Rule (“TSR”) targeting the sale of “debt relief services” (the “Final Rule”). Under the Final Rule, virtually all debt relief service providers will be subject to a ban on advance fees before services are provided. The new rule will apply to these agencies because they now fall under the jurisdiction of the new Bureau of Consumer Financial Protection. The Final Rule is available now on the FTC’s website. The provisions of the Final Rule will take effect on September 27, 2010, with the exception of the advance fee ban provision, which will take effect on October 27, 2010. Importantly, the advance fee ban does not apply retroactively, so it does not apply to contracts with consumers entered into prior to October 27, 2010. The Final Rule contains specific requirements for debt relief providers related to charging an advance fee before providing any services. It specifies that fees for debt relief services may not be collected until:

· the debt relief service successfully renegotiates, settles, reduces, or otherwise changes the terms of at least one of the consumer’s debts;

· there is a written settlement agreement, debt management plan, or other agreement between the consumer and the creditor, and the consumer has agreed to it; and

· the consumer has made at least one payment to the creditor as a result of the agreement negotiated by the debt relief provider.

Previously, most of these scam artist institutions would charge you a huge up front fee for the privilege of their practically non-existent services and after they collected your money, they would do absolutely nothing. This wouldn’t be so amazingly infuriating if what they were charging you for you couldn’t do yourself. But at least now, they will have to actually contact one of your creditors and do what they advertise before they demand that you pay the thousands of dollars that you will be a fool for paying. So if you are foolish enough to use one of these outfits, at the very least, hold until October 27, 2010 to sign up!

FORECLOSURE--COMING SOON--THE TOOLS YOU NEED TO FIGHT BACK

2010-09-03T15:45:00.005-05:00

Thanks to the overwhelming positive response to How to Beat a Credit Card Debt Lawsuit with the Secrets of a Real Debt Collection Lawyer, I am writing a new book sharing all of my legal experience and knowledge on how to fight a home foreclosure and including all the forms you need! People are paying thousands of dollars in attorney’s fees and hundreds of dollars to attend seminars in an effort to save their homes and I’ll share all the same information, direction and guidance plus give you forms so you simply have to fill in the blanks and all for only $9.99!

You've Been Served With A Lawsuit, How To Fight Back

2010-08-02T15:43:00.010-05:00

Once you've been served with a lawsuit, usually through a court summons, you need to realize that the situation is serious and dangerous, but not hopeless. A lawsuit means you have entered a world with time deadlines that cannot be ignored or missed whether you know them or not, rules that govern what you file, how it can be filed and what a judge can see and hear and that those rules apply whether you know them or not, a language that is completely foreign to you but in which your opponent and the judge are perfectly fluent (legalese is not english) and face an outcome which could effect the direction and quality of your life for years to come. When I say that, I realize it may sound completely hopeless. It is not! You can defend yourself! You can win! You can actually be the agressor! The first step is evaluation of the summons. You have to determine if the debt is actually yours, how old is the debt, when did you default (quit paying), what is the applicable statute of limitations, what defenses are available to you, what is the best course of action to take with regard to this particular debt. Second, you need to respond to the summons and complaint by filing either an Answer or Defenses or a Motion to Dismiss based upon a defense. The third step and the step where you can become the active agressor is discovery. In discovery you can serve the other side with written questions (Interrogatories), written document demands (Request for Production of Documents) and facts for them to admit or deny (Requests for Admissions). The answers to your discovery can be used to defeat a debt collection lawsuit or simply make it go away. Forms, instructions and explanations for all of these documents and more are included for only $9.99 in my new ebook:

How to Beat a Credit Card Debt Lawsuit with the Secrets of a Real Debt Collection Lawyer

available at

http://www.lulu.com/product/ebook/how-to-beat-a-credit-card-debt-lawsuit-with-the-secrets-of-a-real-debt-collection-lawyer/11927258

http://www.lulu.com/spotlight/michael_herrinatyahoodotcom.

If you don't have a credit card or a paypal account, you can send a check or money order for $9.99 payable to Michael Herrin to ATTENTION: Law Office at 1832 Irby Lane, Murfreesboro TN 37127. Please make sure to include a shipping address and I'll mail it out to you with free shipping.

PRACTICAL ADVICE FROM A REAL LAWYER AND GUIDES AND FORMS!--AVAILABLE NOW, DON'T WAIT ANOTHER MINUTE TO TAKE BACK CONTROL OF YOUR LIFE

2010-07-25T20:56:00.012-05:00

PRACTICAL ADVICE FROM A REAL LAWYER AND GUIDES AND FORMS!

SECRETS, INSIDER KNOWLEDGE, LAWYER LANGUAGE BROKEN DOWN INTO PLAIN ENGLISH AND MOST IMPORTANTLY ALL THE FORMS YOU NEED!

If you are in over your head in debt and being harassed by debt collectors, you MUST have this book! More importantly, if you’ve been sued, you have to get this book. I have been a debt collection lawyer for more than twenty years. I know every trick and tip there is to beating a debt collection lawsuit and now I’m willing to share that knowledge with you and give you the guides and forms you need to help you defend yourself. For less than the price of a nice dinner, you can arm yourself with all the information you need to take control of your situation, make good decisions and will have the forms and guides you need to help defend yourself. The book is seventy-six pages long and contains seventeen forms and guides and is only $9.99. It even has all the forms you need to help defend yourself. All the letters are here; cease and desist, payment agreements, proposal and verification letters. All the litigation forms are here; Sworn Denial, Motion to Dismiss for Statute of Limitations, Motion to Dismiss for Lack of Standing, Answer and Defenses, Interrogatories, Request for Production of Documents, Requests for Admissions and Motion to Compel. This is just a sample of the forms and guides included. Don’t wait until you are in court and are being steam rolled by a debt collection lawyer. Buy the book today and get started taking charge of your life again!

Go here and buy it today: http://www.lulu.com/product/ebook/how-to-beat-a-credit-card-debt-lawsuit-with-the-secrets-of-a-real-debt-collection-lawyer/11927258

or here http://www.lulu.com/spotlight/michael_herrinatyahoodotcom

If you don't have a credit card or a paypal account and therefore can't purchase from the above link, you can send a check or money order for $9.99 payable to Michael Herrin to ATTENTION: Law Office at 1832 Irby Lane, Murfreesboro TN 37127. Please make sure to include a shipping address and I'll mail it out to you with free shipping.

PROBLEMS WITH COLLECTORS? HAVE YOU BEEN SUED? RESERVE YOUR COPY OF THE HANDBOOK AND FORMS

2010-07-18T21:55:00.009-05:00

If you have been sued or about to be sued or are being threatened with suit over an old or past due credit card bill and don't have a clue what to do. I have the answer for you!! The long awaited Secrets of a Debt Collection Lawyer, How to Survive A Debt Crisis, Collection Agencies and Law Suits, Practical Advice, Tips, Techniques & Tricks, Forms and Guides is almost finished and will be published this week. It will be approximately 50 pages and contain over a dozen forms and guides. It will be available from Lulu.com with a direct link found here and will sale for $14.99. If you want to reserve a copy, shoot me an email to tdimh@mindspring.com, put EBOOK in the subject line and just include a return email address and I'll email you the instant the Handbook is available and give you a direct link. This handbook will let you take control of your life again and allow you, not the credit card company or some debt collection lawyer, to take control of your life! It will have guides and forms to aid you in defending yourself, file in court, even sue the collectors if you want! Don't miss this opportunity. This information is not a scam or a "secret method". It is practical step by step how to information and FORMS on how to defend yourself against debt collection!

Learn everything you need to know to beat a credit card debt lawsuit, forms included! Order your copy of How to Beat a Credit Card Debt Lawsuit with the Secrets of a Real Debt Collection Lawyer at http://www.lulu.com/product/ebook/how-to-beat-a-credit-card-debt-lawsuit-with-the-secrets-of-a-real-debt-collection-lawyer/11927258 or http://www.lulu.com/spotlight/michael_herrinatyahoodotcom. If you don't have a credit card or a paypal account, you can send a check or money order for $9.99 payable to Michael Herrin to ATTENTION: Law Office at 1832 Irby Lane, Murfreesboro TN 37127. Please make sure to include a shipping address and I'll mail it out to you with free shipping.

Debt Defense Mistake Number One - Don't Revive An Old Debt

2010-06-22T15:25:00.005-05:00

There is a legal term called a "Statute of Limitations". This is a legal term for a time limit in which a lawsuit must be brought on a debt or it is barred forever. There are three crucial dates with every Statute of Limitation. First, when does the statute BEGIN TO RUN. In other words, when can you start your clock ticking on the time limit. A statute of limitation typically begins to run from the "date of default". Again this is a technical legal term, but it is essentially the date you broke your agreement or the date you missed your payment and went into default. The second important date is the date the statute of limitation expires. In other words, the date that time is up for your creditor to sue you for not paying the debt. This needs to be explained in a little more technical detail. A statute of limitation is not a bar to being sued. It is a defense if you are sued. A creditor may still call you, write you, demand payment, even sue you for a time barred debt. None of those actions is a per se violation of the Federal Fair Debt Collection Practices Act. A statute of limitations is a defense to being sued. If you are sued after the time limit has ran, you can plead the statute of limitations as a defense and the suit will be dismissed. Now we have a start and an end date, so I know you are asking what in the world is the important third date. The third date is Debt Defense Mistake Number One-the date you revive an old debt. Depending on what state you reside in, there are a multitude of ways you can revive a time barred debt. Generally if you admit you owe the debt, if you agree to repayment of the debt and most importantly, if you make a payment on the debt, the statute of limitation clock starts all over again. Many creditors who buy time barred debts for pennies know these tricks and will contact you and get you to make a minimal payment solely for the purpose of restarting the statute of limitations so you can be sued for the full amount of the debt plus interest. Don't make this mistake. Educate yourself! Figure out when you defaulted and do the math and see if your debt is time barred. The link below lists the general statutes of limitations for each state. A credit card debt is typically considered an open account debt.

http://activerain.com/blogsview/377046/chart-for-statute-of-limitations-for-debts

Handbook with Forms

2010-01-20T10:47:00.005-06:00

I am working on an E-Book that will serve as a Handbook/Guide for disputing and getting out of debt. I am thinking of offering two versions. The first would simply be the Handbook and would cost $5. The second would be the same informational handbook, but with forms and would cost $25. I would appreciate your feedback; is this something you would find useful? Are the prices reasonable? What would you pay for this kind of information? Let me know your thoughts please.

NOW AVAILABLE

technorati claim tag

2009-11-25T13:50:00.001-06:00

SS4HTZ6NJ7EY

The Motion To Set Payments--How To Overcome A Huge Court Judgment

2009-11-18T11:09:00.001-06:00

You have a debt you can’t pay. It’s ballooned into a huge debt with unreal interest charges and now collection costs and attorney’s fees. You offered to pay monthly what you really can pay and the debt collector wouldn’t give you the time of day and offered you some outrageously huge payoff amount. Now you’ve been sued and you are staring at the possibility of or already are saddled with a huge judgment. You are living with the fear that the debt collection lawyer is going to execute (obtain court authority to take and sell your car, your house or some other asset). There is another option besides bankruptcy court and one that allows to retake some control over an out of control situation. Almost every court (jurisdiction) has some form of what we call the Motion To Set Payments here in Tennessee. It is a court remedy that allows you to file paperwork with the court asking the court to set monthly payments on a judgment. The person filing the motion must document to the court all of their income and debts and must justify that they are making the largest monthly payment they are capable of reasonably making. If the court grants their motion and allows them to make the monthly payments (usually directly to the court and not to the judgment creditor), then the judgment creditor cannot take any enforcement action such as executions, wage garnishment or seizures as long as you are current. This is a powerful tool in the hands of the judgment debtor. It essentially allows you to set your repayment schedule at exactly what you can afford. It is a particularly useful tool if you are simply in a bad patch, unemployed and expect your fortunes to improve in time. Contact the court clerk and ask if they have a Motion to Set Payments or a similar motion. Most courts will and even if they don’t, the court will always hear a motion for relief. The key is to be honest with the court and offer a reasonable payment based upon your current financial situation SS4HTZ6NJ7EY

Unemployed and Broke--Time for the Cease Communications Letter

2009-11-13T14:44:00.005-06:00

You are one of the thousands of now unemployed and you are broke. You would love to pay your credit card bill or other debt, but you just don’t have the money. Your creditor is calling every day and sending you threatening letters every week. It’s affecting your mental health and your family. What do you do? Well, if you truly have no ability to pay anything, you might consider the Cease Communication letter. The Federal Fair Debt Collection Practices Act, 15 USC 1692c(c) provides that a collector must stop communicating with a debtor by both phone and mail once that debtor requests the collector to stop in writing. So, if you can’t pay and are being driven crazy, write you’re creditor a letter saying; “Pursuant to 15 USC 1692c(c), I hereby request that you cease all communication with me.” Once that letter is received, your creditor may only contact you to tell you that further communication is being terminated or to notify you that specific remedies are being invoked (translation you are being sued). The requirement that they stop communicating with you doesn’t take effect until they receive your letter. Make sure you send it certified mail so that you have a record that they received it. The Cease Communication letter isn’t a solution to your debt problem, but it can restore the peace to your home.

How to Control a Debt Collection Call

2009-03-26T11:57:00.005-05:00

Getting a call from a debt collector is stressful, embarrassing and unsettling. Debt collectors are taught and trained, in fact its drilled into them, to stay in control of the call! What does this mean? It means they want to direct where the call goes, the tone of the call and they want to ask all the questions. Questions are powerful powerful tools. Many times a collector will ask a question and then simply pause and leave the debtor to stew in that uncomfortable silence. If the debtor starts to ask a question, the collector is trained to either ignore it or answer as briefly as possible giving the debtor no information and immediately redirect the conversation in the direction they want to go. A collector has many different avenues he or she can direct a call down; creation of anxiety based upon threat of litigation or economic ruin, creation of a bond through offers of assistance, creation of humiliation through stark review of the financial situation, etc. All of this is accomplished by asking the debtor questions. So what can a debtor do in the face of this well trained question asking machine? Well, take control of the call by asking questions of course. You have to be confident and professional (not arrogant, abusive or profane). Start by immediately interrupting the collector and asking what their name is again. Of course the collector identified them self at the very beginning of the call, but this allows you to thrown them off of their pre-planned pitch and allows you to start asking questions. Follow up immediately with, how do you spell that. And then; "and who do you work for and how do you spell that". Now you have seized control of the call and are obviously taking notes. If it is an inexperienced collector, they will be thrown totally off of their game. If it is an experienced collector, they will begin fighting you for control of the call. Regardless, the best way to control the call is to end the call. Ask how much the debt is, who the original creditor is and most importantly ask for contact information; what is an address I can correspond with you at and what is a phone number I can use to reach you. Immediately after you receive that information, say something to the effect that I will research this and be back in touch with you and hang up. The collector will note the contact in their database and more than likely move on to easier prey and leave you in peace for at least the time being.

Problems Debt Collectors Don't Want You To Know About #1

2009-02-18T10:55:00.003-06:00

There are lots of problems a typical debt collector has in collecting your debt. Usually, you as the debtor have no idea the problem even exists and so it never comes to light. In today's debt market and economy, perhaps the biggest problem a collector has is producing a documentable chain of ownership. Simply explained; you have a legitimate debt, you ran up a credit card that you now can't pay, you had medical bills you couldn't pay or you borrowed money and can't pay it back. You didn't pay your debt and the original creditor, rather than hound you or after hounding you with no success, bundled your debt with a batch of other debt and sold it for pennies on the dollar. That package of debt has now probably been sold and assigned several times since then. Now, a collection agency has your debt (with tons of interest and collection cost and fees added on) and is calling and writing you demanding payment. One of the most effective tacks to take as a debtor is to say, "yes, I may have had a debt with XYZ, but I don't know who in the world you are. If you can send me written documentation that you either own this debt now or are authorized to collect it, then I'll pay it." Immediately follow that verbal request up with a letter (ALWAYS certified mail, return receipt requested) asking for the same documentation. If the collector can't produce that record of ownership or authorization to collect, then they can't collect the debt. Often times, the collection agency or debt buyer has actually legally purchased the debt for real money. But that transaction is part of a complicated and lengthy legal document that they have absolutely no desire to share with you and to which a standard floor collector has no access. It may be simply easier for the collector to move on to the next more compliant debtor.

Simplest Advice In Settling A Debt

2009-02-09T15:01:00.002-06:00

This is a simple piece of advice that you may not already know. Debt collectors almost always work on some form of a commission basis. Those commissions and every facet of a collector's performance are calculated at the end of the month. Therefore, the absolute best time to settle a debt is at the very end of the month. The deal you may be able to negotiate at the end of the month can be literally thousands of dollars less than the deal you could negotiate at the first of the month.

The Present, The Future and The Myth That Your FICO Score Will Not Matter

2009-02-09T14:48:00.002-06:00

There is a myth being sold to the American people regarding their FICO credit score. Millions of Americans now find themselves in a situation where because of job loss or other economic hardship they must prioritize how they pay their bills. I see an endless stream of financial experts who are telling people to pay for food, shelter and transportation and forget about student loans, credit card bills and any other installment or revolving debt because preserving your credit is a futile exercise. First, let me say that I understand, empathize and agree with the need to prioritize food, shelter and transportation. But do not lead these poor people down the primrose path to believe that the damage they do to their credit will be harmless. The myth is sold under the guise of don't worry, there are so many Americans in similar situations that credit scores will simply have to be a thing of the past. The truth is absolutely nothing could be further from the truth. The truth is that the credit markets (home mortgages, car loans, etc.) will after this economic storm passes be more highly governmently regulated than at any time in our lifetimes. In plain English, that will mean that before a bank can give you a mortgage, it will have jump through a series of government regulatory hoops. Government programs and government oversight has never and can never be subjective. It will always be driven by forms, procedures and benchmarks. Therefore, if though you may have a wonderfully logical explanation why your credit is ruined, it will not matter. In order for the bank to make you a loan, you will have to fit neatly into a government designed program. The only existing benchmark that the government will be able to use to design the regulations they believe are necessary to prevent this disaster from reoccurring is your CREDIT SCORE. So, bottom line, protect your family, but also make ever effort to protect your credit score. It may not matter one iota today when virtually no one can borrow money, but it will mean everything in a year or two or three when the world rights itself.

New Job

2008-03-27T09:54:00.000-05:00

Well, I'm sure you noticed the lack of posts here since mid November. I have taken a new job. I am no longer practicing law, but am now working as in house counsel and vice president for a privately held company. I considered shutting this site down, but decided against it. Once I am acclimated to my job, I intend to resume posting. Thanks for your patience.

THE TOUGHEST DEBT TO COLLECT - THE SELF-EMPLOYED DEBTOR

2007-11-16T11:25:00.003-06:00

The most difficult debt to collect is the one owed by the self-employed debtor. Typically these are middle-income individuals who own their own small business, for example a general contractor, plumber, or beautician. These individuals tend to consider themselves judgment proof and that mentality is reinforced by the economic nature of their employment. They are well experienced in dealing with cash flow problems and pay all of their bills when they are flush with cash and pay none of their bills when they have no cash. They are typically not intimidated by having past due bills and are for the most part, are immune from typical judgment collection activities. The main reason that they are immune or consider themselves immune is that a standard garnishment on the employer, either themselves or the business that they own and run, results in no cash. They will typically answer the garnishment that the business either makes no money, if it’s a garnishment on the business itself or if it’s a garnishment on the owner, that he takes no salary from the business. However, there are several effective methods for collecting debts from a self-employed debtor.

First, you can garnish the cash draw. This simply means issuing a Writ of Garnishment, which is a court order authorizing the Sheriff or Law Enforcement Official to go to the business and seize any money found at the business. The garnishment may be issued for the cash draw and/or the cash register and/or any money found on the person of the business owner. The Writ of Garnishment for the cash draw will not typically result in the collection of enough cash to satisfy the debt. However, it does not take this occurring more than once or twice before the self-employed debtor will contact you and make arrangements for satisfaction of the debt.

A second effective method of collecting from the self-employed debtor is a Writ of Execution or Attachment on the work vehicle and tools of the business or business owner. Again, this is a court order issued by the court directing the Sheriff to go to the place of business and seize certain physical assets of the business. I typically file Writs of Execution for the vehicles and for the tools of the trade of that business. For example, for a plumber, the Writ of Execution would specify the work truck and all of the plumbing tools found on the premises. Again, auction of these items on the courthouse steps, will not typically generate sufficient cash to satisfy the outstanding judgment. However, before you can proceed to auction, I guarantee you will be contacted by the self-employed debtor seeking arrangements for satisfaction of the debt and return of his vehicle and tools.

A third effective method for collection of a debt from a self-employed debtor is the issuance of a Subpoena in Aid of Execution. A subpoena is a court order requiring a person to appear at a given place and time and give sword testimony. I subpoena the self-employed debtor to my office to give a post-judgment deposition regarding his or her assets, the business assets and include in the subpoena a requirement that they present the tax returns that they have filed for the previous five (5) years, copies of all bank statements, for all checking, savings accounts they and the business have, copy of any retirement account information and copy of any business records they have. The tax returns can be invaluable, especially when you discover that a self-employed debtor has not filed taxes for a given year or years. During the deposition, my primary focus is asking the self-employed debtor about current work they are performing and who those clients are and how much they are owed. I then issue a Writ of Garnishment the same day to those clients. This requires the people who owe the self-employed debtor money for work he has performed to pay that money into the registry of the court. In this case, this leaves the self-employed debtor performing work and not getting paid for it. Again, these Writs of Garnishment typically do not generate enough cash to satisfy the judgment, but get the attention of the debtor to the point that he or she will do practically anything to satisfy the judgment.

Collecting a debt from self-employed debtors is difficult. It requires going the extra mile and thinking creatively and uniquely. However, if a debt collection attorney is willing to go the extra mile, these debts can be collected.

INTERNET DEBT MYTHS

2007-11-14T09:52:00.000-06:00

The explosion of the internet has led to a proliferation of myths regarding the
uncollectibility of debts and defenses to debt collection. These myths have spread like wildfire across blogs and websites and they are all false and dangerous.

I haven’t heard anything about this debt for 1, 2 or 3 years and therefore you can’t sue
me for it.

The only time limitation for the collection of a debt is a state’s statute of limitations. A statute of limitation is a deadline established by the Legislature of a given state for the collection of an open account debt. The mere fact that no one has contacted you about a debt for 1, 2, or even 3 years does not render it uncollectible. You should also be aware that typically the statute of limitations for the state within which you reside will not govern your credit card debt. Credit card applications contain a choice of law provision. This is an agreement between the parties to be governed by the law of a particular state. The credit card companies typically choose a state with an extremely long statute of limitations. Rhode Island, a typical state chose by credit card companies, has a ten year statute of limitations for open accounts.

You can’t sue me because you don’t have a signed contract.

Most people fail to understand that when they sign a credit card application and send it back in they have actually signed a contract. I now advise all of my personal clients to keep copies of those applications when they sign them and send them back in. However most individuals typically do not. Regardless a credit card company will typically not issue a credit card without a signed application and therefore without a signed contract. However, even if there is no signed application, you still are parties to a contract. The contract may be an implied and equitable contract. In other words, the credit card company has extended you credit and you have taken advantage of it by purchasing things on their credit. You now have a legal obligation to repay that money and the court will construe that to be a contract.

I have never heard of the company that is contacting me or suing me and I have no agreement with them, therefore I don’t have to pay them.

There is an entire industry in this country now devoted to the purchase and collection of debt. Once you default on a credit card debt and the credit card company is unable to collect it, they will package it or bundle it with thousands of other delinquent debts and sell it to a debt buyer. The debt buyer will pay pennies on the dollar for the debt and then will attempt to collect it. This is perfectly legal. All contracts are assignable, unless there is a written provision in them barring assignment. What this means is that a credit card company can assign (sell) your debt to another company and they do not have to get your permission or even give you notice. That new company simply steps into the shoes of the original creditor.

You can’t sue me I am making payments.

Perhaps the most prevalent myth circulating on the internet is that if you are making minimal regular payments you cannot be sued. The truth is that once you default on a debt you can then be sued for the full balance at any time. Even if you recommence making the full payment, your default has rendered the full balance due and payable at any time. The mere fact that you are making minimal or nominal payments on a regular weekly, monthly or bi-monthly basis does not prevent a creditor from suing you.

There are hundreds of other myths and I will address them in future articles.

POLL REOPENED

2007-11-12T16:09:00.000-06:00

I reopened the poll and set it to run for an entire year. Let me know what you think.

How to Stop Harassing Collection Phone Calls and Profit From Them

2007-11-12T16:05:00.000-06:00

If you are receiving calls from a debt collector who is harassing you and violating the FDCPA,
you can take action to put an end to that illegal activity. This article is not directed toward legally compliant FDCPA calls. However, if a collector is violating the Federal Fair Debt Collection Practices Act by making improper threats or allegations such as that he is going to have you arrested if you don’t pay the debt or he is going to tell your employer that you are a deadbeat, you can take action. The simplest, cheapest and quickest action you can take to stop harassing, illegal collection calls is to purchase a voice recorder. For a minimal amount of money at Radio Shack or other similar stores you can purchase a easy to plugin device which will allow you to record your own telephone conversations. At this point, I must give you a legal warning, however. The laws regarding the legality of taping telephone conversations vary from state to state. Some states are one party states and some states are two party states. That simply means that in a one party state only one party to a telephone conversation must be aware that it is being recorded for it to legally be recorded. In a two party state, both parties to the telephone conversation must be given notice that it is being recorded for it to be recorded legally. Of course, in no state is it legal for a third party nonparticipant in the telephone conversation to record the telephone conversation without a court order. Regardless of whether you live in a one or two party state, I would highly recommend that you give the collector notice that you are recording the telephone conversation. This should have an immediate impact on the nature of the call. At the very outset of the telephone conversation, you should inform the collector that you are recording all of your telephone conversations and in a two party state, ask their permission to record the call. If a collector is prone to use illegal or harassing tactics, they will typically simply hang up rather than be recorded. If a collector is only occasionally prone to cross the line and use improper collection techniques, they will, once they know they are being recorded, mind their manners and be on their best behavior with regard to complying with the FDCPA. Therefore in the majority of cases, you will have eliminated the harassing nature of the collection calls, simply by placing the collector on notice that the call is being recorded. However, if a collector did violate FDCPA by harassing you or making illegal assertions or threats, you know have tape recorded evidence of that violation. You now need to do two things with that tape. First, you need to file a written complaint with the government authority or agency which regulates and governs debt collection agencies in your state. They typically will have a form online that you can print off, fill out and mail in. These forms typically do not carry much weight with the government agencies. However, if you make a copy of your tape and attach it to your complaint, your complaint now has instant credibility and will be given special attention. You should also copy the collection agency with the complaint and a copy of the recording. Secondly, you should file a complaint alleging violations of the Federal Fair Debt Collection Practices Act with your local small claims court. FDCPA violation claims can be brought in any state or federal court. On the day of trial, you can give testimony that the call was received on a given date and at a given time and that you personally recorded it and then present the tape as evidence to the court. The tape should be sufficient evidence for you to recover the statutory fine or penalty of $1,000.00 as set forth in the FDCPA. In this way, you have not only put a stop to the harassing phone calls, but you can even profit from them giving yourself $1,000.00 per violation to pay your debts

Fix It or Forget It

2007-11-08T10:40:00.000-06:00

The biggest mistake a debtor makes is failing to plan a course of action. The majority of debtors I encounter are merely floating through life allowing their circumstances to drive their life choices. They pay the debts owed to my clients because I am actually taking the time and effort to sue them and make their lives miserable while they ignore other debts which are not being as forcefully collected. These same debtors attempt to make low monthly payments thus preserving their debts for inordinate periods of time and ultimately failing to pay off their debt and only managing to accomplish the ruination of their credit. A debtor who is facing significant amounts of debt needs to make a life choice and implement a plan based upon that life choice. That choice is as fundamental as fix it or forget it. In other words, a debtor needs to decide are they going to create and implement a plan which allows them to pay off all of their debt, avoid the creation of new debt, preserve and if necessary repair their credit or is the debtor going to make a conscious decision to not pay any of their debt and allow the passage of time to clear up their debt problem. Both of these courses of action have merit and pros and cons. Both also are extremely difficult. The easier course of action is to simply float down the debt river paying what you can, when you can but in the long run that is both devastating and permanent.

In the first course of action, the debtor should find a program that they can embrace and make their own and totally commit to. I highly recommend the Dave Ramsey Christian based program, but that is simply my opinion. If the debtor makes this life choice they will have to implement a strict budget and pay down the smallest debts first, eliminating debt as they go. The debtor will have to deny themselves the luxury of living like everyone else and will actually have to buckle down and do without. How long it will take to accomplish this program depends on the number of debts and the amount of debt the debtor has incurred. A key to this life choice is a change in life style and pattern of thought. This change is absolutely essential in order to keep the debtor of incurring new debts while you are paying off the old ones. The end result of this life choice will be the end of debt collection harassment and good credit.

The second life choice option available to the debtor is to forget about their debt. This is an extremely dangerous life choice to make. It is not recommended if you have absolutely any assets whatsoever, such as a retirement fund, savings account, luxury automobile or equity in your house. If you are truly flat broke, you can consider ignoring your unsecured debt. By unsecured debt I am specifically referring to credit card debt. Any debt that is secured with collateral such as your car loan which is secured by your car or your house note which is secured by your house must be paid or the institution to which you owe the debt will simply repossess the collateral. A debtor can under the Federal Fair Debt Collection Practices Act inform a collection agency that he or she has no intention of paying the debt and to cease all contact. At that point the debt collection agency must cease all contact, but can proceed with a lawsuit. At some point your creditors will lose interest in pursuing you if you never make any payments and have no assets. Likewise at some point your debts are simply no longer valid based upon the statute of limitations for open accounts in your state. That time period varies from state to state. If a judgment is taken against you that judgment is good for a certain number of years. For example in my state of Tennessee a judgment is good for ten (10) years however, you should understand that at any time during that ten (10) years that judgment can be renewed by court order for an additional ten years. Using this method you are simply banking on the fact that your creditors will lose interest in attempting to get money out of a dry hole. After seven (7) years the derogatory information will age off of your credit report. The downside to this life choice is that you will have to endure credit collection attempts and the fear that whatever asset you do have will be seized or taken to satisfy the debt. At the end of this process, assuming you do not incur additional new debts, you will have decent credit as all of the derogatory information will have aged off.

I cannot recommend to you either of these life choices nor can I advise you on which would be the best for your circumstances. There are other obvious life choices, such as filing either Chapter 7 or Chapter 13 bankruptcy, which I have not discussed. However I can strongly advise you to avoid simply floating down the river of debt making minimum payments when and where you can.

I am not your lawyer!

2007-10-18T08:20:00.000-05:00

I know the health care insurance world is in crisis. I know that because I teach seminars on debt collection and give speeches on ways to fix the health care system. But how I really know it is the pleas from desperate people I receive as a result of this blog. This blog is here to provide information. It is not a solicitation for clients. I now receive an average of twenty emails a week from people describing their specific situation and asking for legal advice. I also receive an average of three telephone calls a week from the truly brave or the truly desperate. These requests break my heart. But I can't respond to them. I am licensed to practice law in the states of Tennessee and Mississippi. I've passed the bar in Alabama, but due to geographical distance, no longer practice there. I am not licensed to practice law in any other state. The rules of my profession prevent me from giving advice on what to do in New York or California or any where else I am not licensed to practice. Additionally, I'm not your lawyer. You and I don't have an attorney client relationship. You haven't hired me, you haven't paid me and I haven't agreed to be your lawyer. Finally, I have an active practice with clients who are actually my clients. Tending to their needs and problems takes all the time I am willing to sacrifice away from my family. I will continue to update this blog and provide as much information as I can. But please understand, if I don't respond to your email and tell you what to do, it's not because I'm being rude or stuck up. It's because I'm not your lawyer.

SAVE YOUR CREDIT-THE MERCY OF THE SHORT SALE IN THE FACE OF FORECLOSURE

2007-09-19T14:18:00.000-05:00

The Wall Street Journal recently reported that the rate of foreclosures has now equaled that of the Great Depression. Record numbers of Americans now face foreclosure on their homes. Aside from the immediate tragedy of losing their homes, these homeowners face the lasting legacy of severely damaged credit. The record of a foreclosure will stay on your credit report for a minimum of seven (7) years. A year ago this would have meant that when you apply for a home loan you would have been assigned to the sub-prime mortgage market. This would have merely meant a higher interest rate which would translate to a higher monthly house note. However, in today’s world the sub-prime market has simply disappeared. Therefore if you have a foreclosure on your credit report it is highly unlikely that you will be able to obtain a home loan. This will change as the credit market swings back to a more liberal pole, but that will not occur for several years. So what is a homeowner to do if faced with imminent foreclosure? The solution may be in the most desperate of circumstances, the short sale. The collapse of the sub-prime market and the drastically increased number of foreclosures has created an entirely new market place for what is commonly called short sales. A broker or a short-sale specialist will contact the home owner and offer to purchase their home for an extremely discounted price. Typically this price is for less than the outstanding balance of the home mortgage. If the homeowner accepts this offer the short-sale specialist will then contact the mortgage company’s loss prevention department. The loss prevention department is the department whose primary function is to prevent default on loans and when default cannot be prevented to proceed with foreclosure and recover as much of the loan as possible. This branch of the mortgage company will acquire the property through foreclosure, then they will sell the real property and subsequently, file a civil suit against the defaulting home owner for the remaining balance of the home loan not covered by the sale of the property. The short sale specialist will negotiate with the loss prevention officer a satisfaction of the mortgage for a discount. These examples work better if some arbitrary numbers are applied. In our case let us assume that a homeowner has purchased a $200,000.00 house on a no money down, interest only loan. Five years into the loan, the balloon refinancing note has become due or the arm as kicked in and the homeowner’s monthly payment has skyrocketed. Because the homeowner has only been paying interest for the first five years of the loan the principle balance of the mortgage is still $200,000.00. The homeowner may very well have equity in the home due to the home’s appreciation in value or the homeowner may be over-leveraged in the home due to collapse of the local home market and devaluation of properties. The amount of equity the homeowner has is immaterial in the short sale scenario. The short sale specialist will offer the homeowner $150,000.00. If the homeowner accepts, the short sale specialist will then contact the loss prevention officer for the bank and offer payment of $140,000.00 in full satisfaction of the $200,000.00 mortgage. Now you are asking why in the world would the bank accept $140,000.00 on a $200,000.00 loan. The reason is the bank is in the business of loaning money and making money off those loans. The bank is not in the business of taking possession of thousands of pieces of real estate, paying the carrying costs on those pieces of real estate, paying the maintenance and upkeep on those thousands of pieces of real estate, paying the repair and remediation costs in order to make those pieces of property marketable and then paying real estate brokerage fees and closing costs for the sale of that property. Banks have already been glutted with foreclosed property and now are no longer interested in taking on new properties. If the loss prevention officer accepts the $140,000.00 offer, the short sale specialist will then go out and find an investor. An investor is someone who is buying property to convert them into rental property or has enough liquidity to purchase property and hold them until the market recovers and returns to normal, when he can then sell the property at a substantial profit. The short sale specialist will locate an investor who is willing to accept assignment of his contract for sale with the owner at $150,000.00. At the closing of that sale the investor will pay $150,000.00. $140,000.00 of that will be paid to the bank in full and final satisfaction of the $200,000.00 mortgage. The remaining $10,000.00 will be paid to the short-sale specialist essentially as a commission for his work in setting up the deal. At the end of the closing the bank walks away with 70¢ on the dollar on its mortgage. The investor walks away with a $200,000.00 house that he bought for $150,000.00 which will now either generate rental income or when the market returns to normal give him a $50,000.00 profit. The short-sale specialist walks away with $10,000.00 cash for a tremendous amount of legwork and negotiation. Your first impression is that the homeowner has been screwed. That is absolutely not the case. The homeowner walks away from the closing with his credit report reflecting that he paid in full a $200,000.00 mortgage with no record of a foreclosure. The homeowner can now go back into the market place and buy a home that he can actually afford under a realistic thirty (30) year fixed rate mortgage. The only true downside for the homeowner is that if in fact he had equity in the home. If he in fact had equity in the home he has lost that appreciation. However, in truth he lost that equity when he could not sell the house for his asking price and that loss was inevitable once the property was foreclosed. Therefore if you are facing imminent foreclosure, one strategy which may preserve your credit is to seek out the short sale specialist who is willing to make an offer to purchase your house for a substantial discount.

Poll Result

2007-08-17T16:01:00.000-05:00

Well the poll closed the results are as clear as a Florida election count. Less than 10% separates the two options. Clearly there was no decisive victor. With this feedback in hand, I will endeavour to tract both courses as equally as possible and thus try to satisfy everyone.