December 15, 2017

Georgia’s Likely New Pre-Garnishment Notice Not All Good News

wage garnishment; bank account levyGeorgia may soon have a new law governing wage garnishments and bank account levies.  But the news is not all good.

You may recall that back in September, 2015, I reported that federal judge Marvin Shoob had issued a ruling that invalidated on Constitutional grounds bank account levies in Gwinnett County, Georgia. A man named Tony Strickland sued the Gwinnett County clerk of court after his bank account containing workers compensation and Social Security funds was seized by a credit card company that had sued him. Mr. Strickland argued, and Judge Shoob agreed, that the credit card company had an affirmative obligation to notify debtors like Mr. Strickland that certain funds (like workers’ compensation benefits, Social Security benefits, welfare payment and similar benefits) were exempt from garnishment. [Read more…]

Don’t Fall Prey to Illegal and Immoral Behavior by Debt Buyers

debt buyerIf you have never heard the term “debt buyer,” you might be amazed to learn that large companies exist solely for the purpose of buying and selling consumer debt. These companies buy and sell billions of dollars of debt. Some are part of public companies that trade shares of stock on stock exchanges.

In other words, credit card companies, hospitals, personal loan companies, banks and other lenders regularly sell and resell debt – and this may include debt owed by you.

Here’s how it works. Let’s say that you open a Mastercard or Visa account with a local bank. Over the years you may start running a balance – perhaps $2,000 or $3,000. You are able to make the minimum monthly payment but the balance grows slowly. At some point, you find yourself with a problem – you miss one or two monthly payments and your account becomes two or three months past due. The credit card company cancels your account and starts sending you collection letters.

At that point, the credit card company may decide that it would rather sell your delinquent debt for cash before it gets too much older. Depending on how delinquent the debt is, a debt buyer may pay only 4 or 5 cents on the dollar. Your 2 month delinquent debt of $3,000 will be packaged along with other similar debt and sold in bulk to a debt buyer at this discounted rate.

The debt buyer may attempt to collect the debt by dunning you (calling repeatedly) or the buyer may retain a lawyer and sue you. [Read more…]

Giant Collection Law Firm Sued by Government for Deceptive Practices

collection lawsuit millThe Consumer Financial Protection Bureau (a federal agency) has filed a lawsuit in federal district court against Frederick J. Hanna & Associates and its three principal partners for operating a “collection lawsuit mill” that uses illegal tactics to intimidate consumers into paying debts they may not owe.

According to the CFPB, Hanna & Associates violated federal law which prohibits deceptive practices in the consumer financial marketplace. The Agency wants compensation for victims, a civil fine and an injunction against the firm and its partners.

The allegations in the complaint include:

  • intimidating consumers with deceptive court filings. Hanna & Associates allegedly used automated processes to generate lawsuits with little or no involvement by attorneys. One of the firm’s lawyers, for example, “signed” more than 130,000 collection lawsuits in a two year period.
  • introducing faulty or unsubstantiated evidence. Lawsuits filed by Hanna & Associates included sworn statements about a particular individual’s debts. These sworn statements were issued by officers of the banks, credit card issuers and debt buyers who had hired the Hanna firm. The CFPB argues that these officers could not possibly have had personal knowledge about the individual cases and that the Hanna firm has dismissed over 40,000 suits in Georgia alone when these sworn statements were challenged by defendants.

In a statement, Hanna & Associates denied any wrongdoing and stated that it has followed all state and federal laws. [Read more…]

Appeals Court Denies Damage Claim for Clear Violation of the Automatic Stay

stay violation distress claimOn May 8, 2014 the 11th Circuit Court of Appeals released an interesting ruling denying a claim for damages filed by Chapter 13 debtors against their mortgage company. The Lodge v. Kondaur Capital Corporation and McCalla Raymer arose when a mortgage company started foreclosure proceedings against Mr. & Mrs. Lodge who were then debtors in an active Chapter 13 case.

Under the automatic stay provision of the Bankruptcy Code, of course, lenders cannot initiate or continue collection activity against a debtor who has filed Chapter 13 unless and until the lender first convinces the bankruptcy judge to lift the automatic stay.

In Georgia, most foreclosures are non-judicial meaning that to start foreclosure a lender needs to notify the debtor and run a written notice of the pending foreclosure in the legal newspaper of the county where the property is located. In the Lodge case, the mortgage company started the foreclosure process and bought the ad.

The day after purchasing the ad, the lawyer for the mortgage company, McCalla, Raymer, recognized the mistake and immediately canceled the foreclosure process. Unfortunately for them, however, it was too late to stop the ad from running. [Read more…]

Never Ignore a Lawsuit that is Served on You

made a mistakeLast week, my secretary left me a message that read as follows:

John Smith called about a possible illegal wage garnishment.  He says that his employer notified him that his wages will be garnished by a credit card company that had never sued him and that he has not heard from in over 10 years.

This sounded interesting.  Was there an FDCPA claim here?  When I called Mr. Smith back, he told me that he moved from the Atlanta area 5 years ago and that he did not remember being sued by the ABC Credit Card Company when he did live in the Atlanta metro area.  His employer, however, was in receipt of a notice of wage garnishment and would be withholding funds from his wages.

Mr. Smith had a copy of the wage garnishment order, which had a case number on it, which meant that a lawsuit had been filed.  The county where the lawsuit was filed has online access and I plugged in the case number.  It turns out that the lawsuit was filed back in 2002 and a judgment issued in 2003.  Under Georgia law judgments expire after 7 years unless renewed and the online record also indicated that this judgment had been renewed prior to the expiration of 7 years. [Read more…]

Debt Collectors Lurking in Hospital Waiting Rooms?

debt collector harassmentA recent article in The New York Times caught my eye.

The tactics, like embedding debt collectors as employees in emergency rooms and demanding that patients pay before receiving treatment, were outlined in hundreds of company documents released by the attorney general. And they cast a spotlight on the increasingly desperate strategies among hospitals to recoup payments as their unpaid debts mount.

To patients, the debt collectors may look indistinguishable from hospital employees, may demand they pay outstanding bills and may discourage them from seeking emergency care at all, even using scripts like those in collection boiler rooms, according to the documents and employees interviewed by The New York Times.

In some cases, the company’s workers had access to health information while persuading patients to pay overdue bills, possibly in violation of federal privacy laws, the documents indicate.

Debt Collector is Faulted for Tough Tactics in Hospitals” (Jessica Silver-Greenberg, The New York Times, April 24, 2012.)

With so many creditors and collection agencies turning to hard-core tactics, in hopes of intimidating enough debtors into paying to justify their wages and contracts, it shouldn’t be surprising that hospitals are following suit.

Medical debt is a key contributor to consumer bankruptcy, anecdotal evidence suggests (as well as my personal experience representing clients, a good many of whom were barely holding on financially before a medical crisis hit). With the cost of health care continuing to increase, it’s only to be expected that the percentage of unpaid bills will go up along with it.

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Tiny, Hidden Credit Report Errors Can Lead to Bankruptcy

Credit reporting mistakesThe Wall Street Journal recently published a new story entitled Hidden Medical Debt Trips Up Homeowners. The report documented several cases in which small medical bills that had been turned over to collection resulted in a more than 50 point drop in a homeowner’s credit score.

In one situation, a homeowner attempted to refinance his mortgage, only to discover that two unpaid medical bills totaling less than $50 had caused his credit score to drop.  As a result of the lowered credit score the refinancing bank demanded over $4,000 in closing costs.

In another situation, less than $500 of medical debt reported to a collection agency disqualified a homeowner from a favorable interest rate, which would have resulted in tens of thousands of extra interest charges.

In many of these situations, the consumer never knew about the unpaid medical debt – the provider simply turned the claim over to a collection agency which immediately reported it to the credit reporting agencies as delinquent debt.

According to the Journal, “otherwise well-qualified borrowers with good loan-to-value ratios and steady employment are increasingly finding it difficult to refinance because of medical billing mistakes marring their credit.”

If you or a loved one has been in the hospital, you probably know that a single visit can result in five, ten or even more bills from separate vendors – the hospital, the hospital pharmacist, the anesthesiologist, the ambulance service, etc.  I do not find it surprising at all that a patient would not know about one or more bills. [Read more…]

FDCPA Does Not Give Debt Collector the Right to Leave Messages on Your Phone Answering Machine

Answering machine blinkingAs you may know, there are both federal and state laws that offer a variety of protections to individuals who are in debt and who are being dunned by debt collectors.  The Fair Debt Collection Practices Act offers a variety of protections in cases involving collection agencies (as opposed to the actual creditor).  In other words, a credit card company can do and say certain things and remain legal, but if a collection agency does or says the exact same things, those actions would be a violation of the FDCPA and make the collection agency subject to a claim for damages.

Two of the protections provided by the FDCPA include:

  • a prohibition against communicating with a debtor when the collection agency employee does not identify himself as a debt collector; and
  • communicating about your debt with third parties

The 11th Circuit Court of Appeals (which provides controlling precedent for Georgia) recently issued an important decision that struck down a somewhat bizarre argument by a debt collector regarding phone messages.  This case benefits consumers by clarifying the rules about telephone messages by bill collectors.

The case of Edwards v. Niagara Credit Solutions involved a situation in which the debt collector (Niagara) left “bare bones” messages on a phone answering machine asking Ms. Edwards to call back about an “important matter.”

Niagara argued that its employee did not identify itself as a debt collector because someone other than the debtor might hear the message, thus violating the “third party communications” prohibition. [Read more…]

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