Yes, You Can Get Rid of a JUDGMENT. (Even an old one).

Judgment. The word sounds so…negative. And permanent. The truth of the matter is that a party must follow all of the rules in order to obtain a valid judgment. If a party fails to follow the rules, the judgment is rendered void or voidable, depending upon which rules the prevailing party failed to follow. Before we discuss the mechanics of void and voidable judgments, let’s go back to basics: what is a judgment?

Simply put, a judgment is a decision or ruling entered by a court. A more literal definition is that a judgment is a piece of paper, filed with the Court, that gives or awards a prevailing party the relief it is seeking (usually money from the non-prevailing party).  A judgment will usually show up on a person’s credit report and can prevent (or, at least, make it more difficult for) a person to:  purchase a car; lease a car; lease an apartment; purchase a house; obtain a loan or credit; etc.  Judgments can also trigger wage or bank garnishments in an effort to liquidate the judgment (aka a way for the judgment holder to get the money awarded by the judgment from the person against whom the judgment was entered).  Oh, and by the way, judgments accrue interest.  And in Florida, they are valid for 20 years.  And can be renewed.

But wait.  There’s more.  The right to collect on a judgment can be bought and sold (assigned) to another party.  Confusing, I know.  Judgments seem like a maze with no end, and attaching to your assets like a leech until your bank account is sucked dry.  Am I right?  Well.  Not exactly.  Remember, what your mother taught you:  rules were made to be followed.  And if a judgment holder did not follow the rules, the judgment may not be as permanent as he or she would like.

Let’s assume that you had a judgment entered against you 6 or 7 years ago for a defaulted credit card.  And you made a few payments.  And then you stopped.  And then your creditor (the judgment holder) issued a wage garnishment against you.  You’re stuck forever, right?  Well, as lawyers always say:  it depends.

Were you properly served?

Was there a default judgment entered?  If so, did you receive notice for and/or attend a hearing for the entry of the judgment?

Did the creditor attach the documents necessary to the original complaint or motion for judgment?

Was there fraud?

Some of these reasons could cause the entire judgment to unravel, eliminating the judgment and putting any money taken from you (voluntary payments or garnishment) and potentially put it back into your pocket.  These are issues that an experienced consumer attorney can identify and help you to navigate.  You may have claims under the FDCPA and FCCPA if there was any type of misleading or fraudulent activity.  Again, you need a consumer lawyer.  Like me.  (Come on, you knew the shameless plug was coming).

Take a look at your documents, and call a consumer lawyer.  Talk with them.  Ask the lawyer if your judgment is valid, void, or voidable.  Ask the lawyer if you are entitled to any reimbursement.  Take charge of your financial situation, and let an attorney handle the stress.

Please note that this article is for informational purposes only and does not create an attorney-client relationship, nor does this article purport to give legal advice.  Everyone’s situation is different.  If you have legal questions, you should contact a licensed attorney.  Written by Shera E. Anderson, Esq. in Sunrise, Florida.

Consumer Law Lingo: What is a Debt Buyer?

A “debt buyer” is a person or company (usually a company) that has purchased a debt for pennies on the dollar.

Wait a second.  Back up.  How does someone “buy” a debt?  Isn’t a debt where someone owes money?

Here’s how it works:  A credit card company (or other lender) offers you a credit card (or loan, etc.).  You accept the offer, and begin to use the credit card.  You use the credit card for gas.  Groceries.  Maybe a nice dinner here or there.  And then you lose your job or get sick and just can’t pay off the credit card bill.  You have now accrued what is referred to as debt.  And the company that issued you the credit card or loan has the legal right to attempt to collect the money that you owe to them (debt), because you entered into a contract with them (aka an agreement to repay borrowed funds).

Once you stop making payments altogether on your credit card or loan, the lender then closes your account pursuant to your agreement, and “writes off” (aka charges off) the debt for tax purposes.  Occasionally a lender will attempt to encourage you to make payments, but after awhile, the attempts cease.  After all, credit issuers are generally not in the business of collecting charged off or dead accounts.  They make their money from live accounts with active interest.  So now that the account is closed, how is the credit card company going to make their money back?

Brace yourself.  Are you ready for this answer?

THEY ARE GOING TO SELL, TO THE HIGHEST BIDDER, THE LEGAL RIGHT TO COLLECT THE DEBT THAT YOU ACCRUED.

WTF?

I know, but debt buying is a big industry, and the buying and selling of the legal right to collect a debt happens all of the time.

Is this legal?  Can my creditor sell my debt?  To answer this I have to call upon my years of law school and studies:  it depends.  Complicated answer, I know.  Simply put, it depends on whether your original contract permitted your creditor to assign its rights to another party.  Generally the contracts do.  Sometimes they don’t.  Regardless of whether your original creditor has the right to assign well, its rights, the assignment of your debt may work in your favor.

Sometimes, when creditors sell the right to collect a debt (and for reasons I have yet to understand), the paperwork regarding the debt is either “lost” or “destroyed.”  What does this mean?  This means that often, a debt buyer cannot prove the debt in a court of law.  If a debt buyer cannot prove a debt in a court of law the debtor wins.  Simple as that.  Granted, not all debt buyers choose to sue over a debt and just try to collect on it for decades (another practice you should be aware of – read my explanation here).   But those debt buyers that do attempt to sue generally back off the minute that the debtor hires an attorney.

Why?  Because the debt buyer knows that it CAN’T. PROVE. YOUR. DEBT.  And they don’t want to be sued for trying to collect a debt that they knew they couldn’t prove.

Moral of the story?  Protect your rights and hire a lawyer familiar with consumer law and debt defense.  (You know, an attorney like me.  Shameless plug).  It is always best to consult with an attorney to help you better understand (and protect) your rights.

Please note that this article is for informational purposes only and does not create an attorney-client relationship, nor does this article purport to give legal advice.  Everyone’s situation is different.  If you have legal questions, you should contact a licensed attorney.  Written by Shera E. Anderson, Esq. in Sunrise, Florida.

 

Three Important Steps to Protect Yourself from Debt Collectors

The phone rings and you nearly jump out of your skin.  You know its the debt collection company calling again about some debt you racked up years ago. You have a family to support now.  And rent or a mortgage to pay.  And a car payment.  And you have to eat.  You just don’t have enough money to pay off that debt, but the debt collector doesn’t care.  The debt collection company WANTS. ITS. MONEY. NOW.  You panic and ignore the call, but you know they will call again tomorrow.  Is there anything that you can do to make it stop?  YES.  Let me spell it out for you:  Y.E.S.  Get ready to tell the debt collector BYE BYE BYE (BYE BYE).  (OK sorry that last line took it too far.  #FanGirl #StillTheBestBoyBandEver).

Here are three important steps that you can take to protect yourself from a harassing or dishonest debt collector:

  1. Track all calls from your debt collector.  You can click here to download a free call log.  Make sure to notate the date, time, name of the caller (if you know) and company, and the details of the call (i.e. you asked who was calling and they hung up, etc.).  Keep this log going for as long as you can.  It will serve as excellent evidence in the future if the need arises.
  2. Request validation of the debt.  Send a letter to the debt collector specifically asking them to send you proof, or validation, of the debt that they are trying to collect.  Federal law grants you, the consumer, the right to request validation.
  3. Send a cease and desist notice.  Now, this one is a little trickier.  You have to wait until AFTER you have received your validation before you can request a cease and desist.  If you send the cease and desist notice first, the debt collector may be prohibited from sending the validation that you previously requested.  If you have not received a response to your validation request within 30-45 days (MARK IT ON YOUR CALENDAR), it is safe to send out your cease and desist.  Once you send out a cease and desist, the debt collector is prohibited from contacting you.  KEEP YOUR CALL LOG FROM STEP ONE.  Also keep any e-mails, faxes, and/or letters that you receive before and after the cease and desist notice.  All of this will serve as evidence should the need arise.

If these steps intimidate you, or if you have a debt collector that is totally oblivious to the law and fails to comply with your demands, CONTACT A LICENSED ATTORNEY that is familiar with consumer law.  Like me.  (Shameless plug.  Get used to it, folks).  In all seriousness, it is better to speak with an attorney and get your problem resolved.  Let the attorney worry about dealing with the debt collector so you can worry about the more important things in your life.

Please note that this article is for informational purposes only and does not create an attorney-client relationship, nor does this article purport to give legal advice.  Everyone’s situation is different.  If you have legal questions, you should contact a licensed attorney.  Written by Shera E. Anderson, Esq. in Sunrise, Florida.

Don’t Pay that Old Debt!

The debt collectors have a new trick up their sleeves:  trying to get YOU to revive an otherwise dead debt.

For example, let’s say that you charged up your credit card back in your college days 10 years (well, maybe 20 or 30 for some of us) ago.  You were paying it off for awhile, and then due to circumstances beyond your control (illness, loss of job, etc. – it happens to ALL of us), you were unable to maintain payments and your account went into default 5 or so years ago.  Unbeknownst to you (because debt buyers don’t always send the legal notices that they are supposed to), your account is charged off and sold for pennies on the dollar to NaaaaastyDebtBuyer, Inc.  (make sure you pronounce the “aaaaaa” part of NaaaaastyDebtBuyer with a little ‘tude).

Now, Naaaaaaasty DB (we’ll call them NDB from here on out) wants to make their money back.  And then some.  And then some more.  And how are they going to make their millions and millions of dollars?  (think cliche photo of Dr. Evil)  By collecting those dollars from YOU, of course!  Silly.

So they send you a letter asking that you pay them.  And offering you a “great deal” to settle your account for 30% of the balance (which, by the way, is likely still more than your original principal balance).  And then they put in this really small line in there along the lines of the debt being too old to take legal action, but that its best to make payments.  They think they are so slick.  Why are they so slick?  Because they are trying to TRICK you into making a payment on an old debt for which the statute of limitations (a legal barrier for filing a lawsuit to collect an old debt) has expired.  And this is likely a violation of federal and Florida laws.

What happens when you make that payment out of the goodness of your heart?  You restart the statute of limitations.  Now NDB has four more years to file a lawsuit against you.  And add on more fees.  And costs.  And interest.  And make their millions and millions of dollars.

But, now that you’ve read my article, you aren’t going to revive that old debt.  No.  You are going to #slay (a technical term for when a person “Litigates Like a GIRL,” usually followed by a “#yaaas”).  And you are going to protect your rights by sending a cease and desist letter or speaking to a licensed attorney.  Like me (shameless plug).  But in all seriousness, think about what you are paying and read the documents that debt collectors send you.  If you have any questions or concerns about what you are reading or receiving, or what the consequences of paying a debt buyer may be, please PLEASE contact a licensed attorney to help you out.

Please note that this article is for informational purposes only and does not create an attorney-client relationship, nor does this article purport to give legal advice.  Everyone’s situation is different.  If you have legal questions, you should contact a licensed attorney.  Written by Shera E. Anderson, Esq. in Sunrise, Florida.