Debt Prison &#187; collection

* Restrictions on Wage Garnishment for Debt Collection.

* Reasons not to file Bankruptcy or Settle Your Debts

How to Avoid a Lawsuit From a Collection Agency

Debt Prison — Wed, 14 Jan 2009 19:53:56 +0000

The first thing you need to understand is that most large collection companies have a lawyer at their disposal who writes letters on their behalf and handles any disputes. Some lawyers work exclusively for collection agencies, while others are hired only when needed. These lawyers also represent the collection agency in the likely event a debtor sues them! If the collection agency is not located in your state, there is a very good chance they will not attempt legal suit. Most likely they will call, mail letters, and when you fail to respond… they’ll sell the debt to another collection agency for pennies on the dollar. In order for them to sue you (out of state), they would have to employ the services of a lawyer where you live. This can be very expensive and will usually void the benefits of a civil judgment. It is only when they have a debtor in their state that they prefer legal suit. A good candidate for legal suit is one with at least a balance of $500, at least one asset, and the debt is not in dispute. See also all of my articles on Collection Agencies and make sure to read How to avoid paying a debt.

To file a complaint with the Federal Trade Commission regarding a collection agency click here or call toll free at 1-877-FTC-HELP.

Many Judgments are Never Collected

There’s a good possibility that even with a judgment a collection agency will never be able to collect on the debt. Many debtors are in such a position financially that they cannot legally be collected on. So even with a judgment to repay the debt… the collection agency and court can’t enforce it. To learn more about this read Restrictions on Wage Garnishment for Debt Collection.

Many debtors move to another state which creates more legwork for the collection agency. They have to determine where you moved and then request for the new state to enforce a judgment acquired from your old state. Some female debtors get married and change their last name. This can slow down the enforcement of a judgment. Also, some states don’t consider assets joint – so a person can nullify a judgment by putting all assets in their spouse’s name, not working, or hiding income (hiding your income is illegal). See also, What is a Junk Debt Buyer?

**Some states will consider debts and assets as joint accounts even if your spouse’s name is not on the account. In California they can collect on your spouse’s assets to satisfy a civil judgment.

Is your debt past the Statute of Limitations?

In my home state of Mississippi the Statute of Limitations (SOL) is three years, this is the lowest SOL in the United States – who says Mississippi is last in everything? So if I stop paying on my VISA credit card in August of 2008, the creditor or collection agency has until August of 2011 to get paid or sue me in civil court for the debt owed. If I can put off paying on the debt, or acknowledging I owe it, for three years and the collection agency doesn’t get a judgment… then I no longer legally owe the debt. They cannot take me to court and be awarded a judgment, provided I show up and inform the court that the SOL has expired on the debt. See also, Debt Past the SOL and Collection Agency still sues.

Is the Collection Agency located in your State?

Most collection companies will not file a civil suit for debt collection on a debtor that lives in another state. Most collection agencies have a lawyer on staff or one they regularly work with. Since the collection agency has to sue you in the state where you live, they aren’t likely to hire a lawyer in your hometown to represent them in the case… if they are located out-of-state. They also are not likely to send their lawyer across state lines to collect a debt. Besides, in order for a lawyer to cross state lines he has to be licensed in that state. Most lawyers are only licensed in one state.

The Amount of the Debt

The lower the dollar amount of defaulted debt the less likely the collection agency will pursue legal action. Very seldom will a collection company file suit on a debt of less than $500 and most likely $1,000. Obviously it’s a lot of time and expense involved in a civil court suit… so they don’t like to bother with court unless they feel confident of a decent pay off. However, I should make you aware that some of my readers have been taken to court for less than $1,000.

How many assets do you have?

The more reliable assets you own, the more likely the collection agency will pursue a legal course of action. If the collection agency knows that you have a home, land, or a vehicle which is paid for – they can win a judgment, then via a writ of execution they can be awarded a lien on said property or force a ‘Sheriff’s sale’. A job is considered an asset since they can seek to garnish your wages or bank account.

Is the debt in dispute?

A collection agency cannot file suit on a debt that is being disputed. If you requested validation of the debt, and their information is insufficient (they didn’t accurately prove you legally owe them the debt), their case can be thrown out of court.

Don’t apply for new credit

One of my readers contacted me about a bill collector who was threatening to file suit if she didn’t cough up a payment by the end of the month. The bill collector informed her that he had been watching her credit report and noticed she had recently applied for credit on a vehicle purchase. When you apply for credit on new purchases the collection agency rightly figures you have money to pay them! The information you put on the credit application is also an opportunity for your credit report to get updated with your current address, spouse, and asset information. A collection agency can acquire your credit file and read up on your latest hits.

TIPS for Avoiding the Collection Agency Lawsuit

1. Get any property you own out of your name.

2. Quit your weekly paycheck job.

3. Go into business for yourself (no wage garnishment).

4. Maintain a story of no job, no assets, and a gloomy future.

5. Move to MS (SOL 3 years) or TX (SOL 4 years).

6. Always deny any knowledge of the debt.

7. Do not answer their phone calls.

8. Record their violations of the FDCPA and sue them (or threaten to).

9. Avoid a court summons until the SOL has passed.

10. Leave the United States with no forwarding address.

Discuss this article and meet new people at Debt Prison Forums.

Related Articles

* Restrictions on Wage Garnishment for Debt Collection.

* Reasons not to file Bankruptcy or Settle Your Debts

Should I pay the collection agency or the original creditor?

Debt Prison — Mon, 05 Jan 2009 23:03:22 +0000

When possible pay the original creditor and bypass the collection agency. If your creditor has ‘assigned’ your defaulted debt over to a collection agency for collection… call the creditor and ask if you can just pay them directly. If they agree to accept payments then pay them and eliminate the third party. See also, How to deal with collection agencies.

Dear Debt Prison,

Here is my situation. We are overdue on a fairly large American Express bill. We owe the money but can’t pay it off right away. We are not disputing the fact that we owe the money.

We have been sent over to a collections agency, NCO Financial Systems. I do not yet know if they have purchased the bad debt or if AMEX has just assigned the case to them. If I call the AMEX number on the back of my card, I get an automated message that I need to talk with NCO Financial.

Of course, NCO Financial wants all of the money and they want to setup a payment plan of something like 30% down and some other payments. None of this has been in writing, just phone conversations.

I was able to talk with someone at AMEX. They said that they could NOT accept any payment plans since NCO was handling the account now but they will still accept any payments that we make to them. So, while they can’t officially agree to any sort of payment plan, they will accept any payments that we send them.

This is interesting! I basically said to AMEX, “Well, if I just keep sending you money, I will eventually payoff my account and I won’t owe anyone any more money, right” “Yes”. I can still login to the AMEX site and see all of my account information.

So I wonder if it’s in our own best interest to just keep stringing along NCO while continuing to make payments to AMEX for the next 6 months until the debt is paid? I am sending NCO a debt validation letter. We know we have to pay AMEX, but I don’t have to pay NCO until they can prove to me that I need to pay THEM, not AMEX. It will probably only take 6 months or less to pay off the debt.

Steve

Debt Prison response…

Good question. Yes NCO has been ‘assigned’ the debt by Amex. I would continue to make scheduled monthly payments to Amex and no longer speak with or have any correspondence with NCO. You owe the money to Amex, and if possible, I would pay them. Have you still been receiving monthly statements from Amex?

I would try and avoid dealing with a third party if at all possible. By ignoring NCO Financial you eliminate the need for a third party and any corresponding paperwork they’ll bring to the table. However, you should keep all correspondence from both NCO Financial and American Express just in case there is a problem on down the road.

NCO Financial may ‘accidently’ place negative strikes on your credit report. If so, you’ll need all paperwork to correct your credit report – if the negative strikes are inaccurate!

Discuss this article and meet new people at Debt Prison Forums.

Related Articles

* Restrictions on Wage Garnishment for Debt Collection.

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Can a Creditor Collect on Discharged Debt?

Debt Prison — Sat, 03 Jan 2009 02:57:25 +0000

Original creditors and collection agencies will often collect on discharged debt, charge offs, debt absolved by bankruptcy, and even debt that’s been settled. This is debt that can’t legally be collected on via a civil court judgment. However, collection agencies won’t let a little thing like your legal rights stand in the way of their profits. See also, What is a junk debt buyer?

Often creditors will continue to report a discharged debt as a ‘live’ debt on your credit report, making it appear that you still owe the debt and that it’s active. They do this in hopes that you’ll need new credit for a purchase (like a home), and you’ll have to come back and pay them to get your credit report cleared up. If you sue the creditor, they’ll claim they have no record of the discharge, or that the court didn’t notify them of the bankruptcy.

A couple of months ago I wrote an article about a debtor who was trying to settle a debt with Chase Bank. Chase had ‘assigned’ the debt to a collection agency and the CA agreed to settle the debt. Desiring to guarantee this debtor handled the settlement properly I gave her the following instructions:

1) She contacted the original creditor to insure that the collection agency legally represented them (the creditor).

2) She documented the names and positions of the representatives and supervisors with whom she spoke to on the phone (original creditor).

3) She requested that the collection agency fax her a statement saying that this settled amount would 100% satisfy this debt and that the loan would be reported as ‘paid in full’ to credit reporting bureaus.

4) She then called the original creditor to insure that they agreed to these terms and documented the phone call with their names, their positions, their supervisor’s name, and date of conversation.

Despite following these instructions Chase Bank still sent her a bill the next month for the settled amount. She had to fax them a copy of their settlement agreement twice before the matter was settled. What if she hadn’t kept a copy of the settlement? Chase Bank would have continued to bill this consumer for the settled debt. Later on, Chase would have sold this debt to a collection agency and likely reported it as a charge off on her credit report.

If you have an agreement with a creditor make sure you get it in writing before you pay them. Otherwise, they will act as though no agreement occurred, they will still attempt collection on the debt, they will report the debt to credit reporting agencies negatively, and then they will sell the debt for pennies on the dollar to a collection agency.

Yes creditors and collection agencies are collecting on discharged debt. They accomplish this by using loop holes in the law, or by going around the law altogether. The best way to fight abuse from collectors is to keep a paper trail of all documents related to the debt. In order to make creditors follow the law – you may have to employ the services of a law office. Sometimes there’s just no way around it.

How long can collectors try and collect on a debt?

Collection agencies are collecting on debts far past the Statute of Limitations and other debts that have been legally absolved for years. Two weeks ago I was contacted by a reader who had a collection agency trying to collect on a debt from 1989. The State in which she lives has a Statute of Limitations of 4 years. That means this CA is trying to collect on a debt which is 15 years past the legally allotted time for debt collection in her state. The debt doesn’t even appear on her credit report. See also, Debt past the SOL but collection agency still suing.

Discuss this article and meet new people at Debt Prison Forums.

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Should you respond to a collection letter?

Debt Prison — Mon, 29 Dec 2008 19:42:57 +0000

Recently a family member sought my advice on a collection letter he had received. He’s only 20 years old and racked up some ridiculous debt from a sport bike purchase. In order to finance the bike, the dealership placed the interest from the loan and some accessories on a credit card they provided for him. After he sold the bike (the sale covered the remaining principle balance), he was still left with several thousand dollars of debt on the credit card. Since he went back to college he has no money, and has therefore defaulted on the debt.

The debt was sold to a collection agency, charges were added (the debt grew by $1,000), and the collection letter was mailed. The collection agency also calls daily, which is annoying others at the home. Like many larger collection agencies, they have a lawyer on staff that writes their letters and handles any disputes. The collection letter appeared to come from a law office. However, an internet search of the law office revealed that it’s simply a lawyer working within a collection company.

Further web research (reading online forums) revealed many former employees who provided intimate details about the way in which the company operated. Every source I found suggested that the collection agency’s lawyer would only sue if your home was located in the same state as their office. Now I realize getting information in such a fashion isn’t always going to be 100% accurate. However, it is often dead on. And since big companies won’t disclose their collection policies, listening to ex-employees is often a great source for valuable information on their collection practices.

I have also noticed that all collectors claim that debt validation letters draw unwanted attention to your account. Which brings up the question of when a debt validation letter should be applied by the debtor? I’ve come up with the following short list of when a debtor might want to apply a debt validation letter:

You need a clean credit report (and are willing to hire a lawyer to insure you get one).
You don’t legally or morally owe the debt.
You have no knowledge of the debt.
The dollar amount has been increased with bogus charges.
The debt is past the Statute of Limitations.

In the case of my family member, he doesn’t need a clean credit file, and the collection agency isn’t likely to seek legal action against him in the state of Mississippi (the SOL in MS is 3 years). So for the time being, I suggested he ignore the phone calls and letters, and be patient until it’s sold to another collection company. When the debt is sold to another collection agency we’ll take some time, research their company, and make another decision on how to handle the debt.

Discuss this article and meet new people at Debt Prison Forums.

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* Restrictions on Wage Garnishment for Debt Collection.

When Can I Start Settling My Debts?

Debt Prison — Tue, 02 Dec 2008 01:18:43 +0000

A reader at How to settle your debts on your own wants to know when he should start trying to settle his unsecured debt. He also wants to know which one to settle first. Now bear in mind that you can’t miss a payment in October and expect to settle your debts in November or December. Credit card companies and collection agencies aren’t stupid! If you could afford a lump sum settlement that soon after having missed a payment…. then common sense will tell you that the debtor can afford to continue making the minimum payments.

My wife and I owe more or less $40,000 on our credit card debt and an unsecured loan. We plan to settle our debt on our own. We stopped paying our credit card bills two months ago and they immediately started calling and harassing us. Also, I lost my job so my wife is the only one working and we can’t afford to pay the minimum monthly payments. We’ve got a $25,000 unsecured loan and more or less $15,000 in credit card debt. I don’t know when will I start sending them letters and who’s the first one I will talk to and negotiate with. And I’m worried that if I don’t take action in the near future they will sell my account to a collection agency! Please help – thank you very much!!!!

Angelo

Hey Angelo,

First off it’s too early to even start discussing settlement with these guys. That’s because you need a cash lump sum to settle with the collectors. And if you could afford a lump sum you could afford the minimum payments. You’re gonna have to let this thing sit for at least a year most likely. Meanwhile you can just tell them that you’re broke for the time being and will make payments when you have money… but for now you’re living from check to check to eat.

Sometimes the original creditor will not settle the debt – they sell it off to a collection agency instead. If they sell or assign the debt to a collection agency then I suggest you exercise your rights under federal law and write them a Debt Validation Letter. This is just to insure that the collection agency is following correct procedures.

Now let me ask you this question…

Would you rather have to deal with this crap (collectors calling, judgments, wage garnishment) for the next three to ten years… or would you rather get a job (or two jobs) and work like crazy to pay this debt off in full. That’s about your only options…
Now if you can’t or are unable to work then the best thing to do is settle with these guys later on. But in the meantime you might want to change your phone number and deal with your collectors through the mail only. And then there’s always the possibility of getting a judgment slapped on you in civil court. Bear in mind the better record keeping you undertake the better off you will be. See also, How to deal with collection agencies.

Also, is there anything you could sell to help get you out of this jam? Can you sell your cars, your houses? Can you downsize to cheaper cars or cheaper houses? Can you move in with a relative and pay no rent? You and the wifey need to have a serious discussion and think of these types of questions.

If you do decide to settle I would use the ‘debt snowball’… starting with the smallest debt and working my way towards the largest. I’d initially try and settle for 50 cents on the dolllar with the debt of lowest balance. Bear in mind that I would try and settle based on what the balance is RIGHT NOW. Not what it will be in one or two years.

That’s because once the credit card companies and collection agencies get through tacking on their satanic onslaught of fees, penalties, and interest… these debts could easily double in balance before you’re ready to settle them. So what may be a credit card balance of $4,000 today… may be 8 or $10,000 in two years. I would inform them that I’ll settle for 50 cents on the dollar based on the original default amount… in this case I’d offer $2,000 for the initial defaulted debt of $4,000.

Good Luck and Happy Holidays!!!

Barry

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Restrictions on Wage Garnishment for Debt Collection

Debt Prison — Sun, 30 Nov 2008 16:13:23 +0000

Many debtors that have defaulted on their credit card debt or other unsecured loans are concerned about their wages being garnished. Often collection agencies will threaten to turn your debt over to their ‘legal department’, or take you to civil court to get a judgment, or garnish your wages. Well what can they really do and how much of your wages can they actually garnish? Relax… I found this very important information for you… at no charge.

The U.S. Department of Labor has developed The Federal Wage Garnishment Law, Consumer Credit Protection Act’s Title 3 (CCPA) - which defines how much of a person wages can be garnished by debt collectors via a judgment. The best way to overcome your defaulted debt is to gain knowledge. The more you know about what can happen in the ‘real world’ (not the world of phone calls with debt collectors and their often empty threats) the more likely you’ll be able to get out of debt, salvage your credit report, and get on with a happy life.

Here’s what you need to know from the above mentioned Act

What are the restrictions on wage garnishment?

The amount of pay subject to garnishment is based on an employee’s “disposable earnings,” which is the amount left after legally required deductions are made. Examples of such deductions include federal, state, and local taxes, the employee’s share of State Unemployment Insurance and Social Security. It also includes withholdings for employee retirement systems required by law.

Deductions not required by law—such as those for voluntary wage assignments, union dues, health and life insurance, contributions to charitable causes, purchases of savings bonds, retirement plan contributions (except those required by law) and payments to employers for payroll advances or purchases of merchandise—usually may not be subtracted from gross earnings when calculating disposable earnings under the CCPA.

The law sets the maximum amount that may be garnished in any workweek or pay period, regardless of the number of garnishment orders received by the employer. For ordinary garnishments (i.e., those not for support, bankruptcy, or any state or federal tax), the weekly amount may not exceed the lesser of two figures: 25 percent of the employee’s disposable earnings, or the amount by which an employee’s disposable earnings are greater than 30 times the federal minimum wage (currently $6.55 an hour).

For illustration, if the pay period is weekly and disposable earnings are $196.50 ($6.55 × 30) or less, there can be no garnishment. If disposable earnings are more than $196.50 but less than $262.00 ($6.55 × 40), the amount above $196.50 can be garnished. A maximum of 25 percent can be garnished, if disposable income earnings are $262.00 or more. When pay periods cover more than one week, multiples of the weekly restrictions must be used to calculate the maximum amounts that may be garnished. The table and examples at the end of this fact sheet illustrate these amounts.

What about child support and alimony?

Specific restrictions apply to court orders for child support or alimony. The garnishment law allows up to 50 percent of a worker’s disposable earnings to be garnished for these purposes if the worker is supporting another spouse or child, or up to 60 percent if the worker is not. An additional 5 percent may be garnished for support payments more than l2 weeks in arrears.

Are there any exceptions to the law?

The wage garnishment law specifies that the garnishment restrictions do not apply to certain bankruptcy court orders, or to debts due for federal or state taxes.

If a state wage garnishment law differs from the CCPA, the law resulting in the smaller garnishment must be observed.

The world of defaulted debt is no different from any other aspect of our lives. The more information and truth you acquire on the subject… the sooner you’ll be able to escape from Debt Prison. If you are new to the world of defaulted debt please take the time to read my best articles listed below.

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Should I use the Debt Snowball?

Debt Prison — Wed, 12 Nov 2008 01:31:33 +0000

**Disclaimer – DebtPrison.net does not administer legal or financial advice. The contents of this website are my opinions on collection agencies and how to deal with them. Nothing on this website should be interpreted as legal advice or council. No opinions on this website should be used to replace the advice of your financial advisor or your legal council.

A reader at The Fair Debt Collection Practices Act wants to use the debt snowball but the collection agency has placed an ultimatum on another debt… should she pay it?

Hi, I would like to thank you for this website!!! I do not feel so alone anymore!!!! Here is my story…. My husband worked for MBNA for 5 yr. and when Bank of America took over they told him to look for a new job b/c he made too much money. They let him go w/i 2wks. This is when all hell broke loose for us.

He was out of work for 10 months. Slowly but surely our cc debt crept up. Our once perfect credit that we once used for convenience purposes and paid in full monthly had totally gone out of control. He did get another job and made $60,000.00 less a year. So we were fighting to just get by never mind paying off our $20,000.00 in cc debt. Well in Sept. he lost the only job our family has. So now we are really screwed. We get about 10-15 calls per day from collectors. And now Bank of America’s legal department contacted us on Friday saying that they will be pursuing legal action if we did not pay them $268.00 by the end of this month and $150.00 every month there after.

The kicker is that we are one month away from settling a $20,000.00 debt on our other Bank of America account. I am begging, borrowing and stealing to make sure that gets paid! I just cannot afford this extra $268.00 right now and they are so unwilling to wait until December when the $20,000.00 will be paid off.

We literally have nothing we are feeding the kids with food stamps at this point b/c we have no income. We have to let the legal department know if we are willing to do this by Monday. Do you have any advice? If they do pursue this legally will it make them look bad that we couldn’t pay on both but are trying to pay the one? I am at wits end and can’t even sleep anymore. The woman from the legal department was so mean and said “well I pay my bills” AAHHH!!!! I have read your threads and have found them all very helpful.

Thank you,
Sheila

Debt Prison response…

I would just stick to the program you are currently on. I would inform BOA that they can pursue legal action if they’d like.. but you cannot pay anything until December. I would settle the other debt first… and then begin repayment on the other account. And not one damn day sooner.

It’s because you can’t afford minimum payments that you have to default in the first place. Continuing in the cycle of unreachable minimum payments will only postpone the settlement process for you. Stick to the debt snowball, pay/settle off one debt at a time, and chances are you won’t go to court. However, if you do find a summons request in the mail, go represent yourself and do your best to cooperate with the desires of the court.

If we all agreed to the terms of debt collectors we’d never get out of debt… Remember their job is to get a payment out of you right now. You can’t blame them for this… after all you do owe them the money. However, you have to pursue the actions which will do the most good for your financial health overall. Keep that in mind as you deal with collection agencies.

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Collection Agencies: Get Everything in Writing!

Debt Prison — Thu, 31 Jul 2008 01:29:18 +0000

I never cease to be amazed by the outright lies of collecton agencies and the creditors they represent. Recently I discussed how do deal with a collection agency with a certain reader. She was trying to settle a debt for her daughter and I gave her some advice about how to conduct the debt settlement to insure that it would stay behind them for good. You can read this back and forth discussion by clicking here.

Luckily she got everything in writing. Now here we are a month later and just as I suspected the original creditor sent her a bill for the remainder of the debt. She correctly handled this situation by following a few important steps.

1) She contacted the original creditor to insure that the collection agency legally represented them (the creditor).

2) She documented the names and positions of the representatives and supervisors with whom she spoke to on the phone (original creditor).

3) She requested that the collection agency fax her a statement saying that this settled amount would 100% satisfy this debt and that the loan would be reported as ‘paid in full’ to credit reporting bureaus.

4) She then called the original creditor to insure that they agreed to these terms and documented the phone call with their names, their positions, their supervisor’s name, and date of conversation.

Now a month later, despite having a letter and documented phone conversations, she sends me the following email:

Hi Barry, It’s me again. Guess what? Yesterday my daughter received a bill from the credit card company for the balance of the debt that supposedly was closed and settled. I have the names of the people that we spoke to at the CC co. back in May saying that the collection agency we were dealing with was authorized to offer us a settlement for them. I also have the letter stating that the account was closed and paid in full. Now what? Thanks

My advice to her was to contact the credit card company and inform them that they have made a mistake. Obviously they have simply made an accounting error which led to this miscalculation on their part. I would then stay on the phone with them until this matter was settled. She’ll probably have to end up faxing them the very letter that they agreed to honor just a month earlier. Bear in mind this is no small credit card company, this is Chase Bank. Luckily she got this agreement in writing. And since she documented the phone calls (where they stated they agreed to the terms that the collection agency put forth on their behalf) she should be able to force them to honor the contract to which they agreed.

However, before this matter is behind them she may very well have to hire a lawyer to force them to honor a contract that they produced. Or this credit card company may sell this ‘outstanding debt’ to another collection agency for pennies on the dollar. The faster she forces their hand the better….

**Update
After having to mail the copies of their settlement agreement to Chase Bank… twice – it appears this affair is over. Chase mailed her a letter stating the account had been settled. So, for now, the matter appears to be closed.

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