Outlawed Practices:

Everything from who they can call, to when they can call, and what they say is governed by this law. Collectors may call your family or your neighbors in order to determine your location but they can only call a person once and cannot mention that you owe a debt. If the collector is given any notice that you are not to receive calls at work, then they absolutely may not call you there. In fact, a collector is prohibited from calling at any time or place after they learn it is an inconvenient time or place for you. Also, calls made before 8:00 a.m. or after 9:00 p.m. are strictly prohibited.

Harassment and abuse is unlawful as well. Many times collectors take rather aggressive tones in their calls to collect debts. Overly abusive conduct, including the use of obscene language, yelling, or calling on multiple occasions for the purpose of harassment and abuse, is not allowed under the FDCPA.
Finally, a collector cannot make false or misleading statements to you, or threaten to take action that they cannot legally take or don't intend to take in an effort to collect the debt.

Protect Yourself:

When a collector begins the collection process, they must send you a letter that identifies the original creditor, the balance owed, and explains your right to dispute the validity of the debt. If they receive a written dispute within 30 days, they will provide you validation of the debt - proof that you owe it and that the amount is correct. If the collector cannot respond to your written dispute with ample validation, then they must discontinue their collection of the account until such time as they can.

If you notify the collector at any time in writing to "cease and desist" all communications, or that you refuse to pay the bill then they must stop calling you. A popular collection tactic is to report the collection on one's credit report thereby making it difficult to obtain any other credit while this bill remains unpaid. A collector may not report anything to a credit reporting agency that is false; if you dispute the debt or any portion of it, then the collector must report the fact that you have registered a dispute.

Whether or not you have used any of the protections above, if you feel your rights have been violated there is help. Our firm handles FDCPA violation cases and we offer a free attorney consultation. The FDCPA provides that a consumer that experiences a violation is entitled to any actual damage suffered as well as a statutory penalty of up to $1000. In addition, the law provides that if a consumer is successful in bringing a claim under this law, attorneys' fees and costs are covered. If you prevail against a debt collector, the collector will leave you alone, you can obtain compensation, and you won't have to worry about the cost of an attorney.

• Part of the information provided when you check your report is the name of any person or company that gained access to your report and the dates when they did it.
• An actual application for credit will show up as a "Regular Inquiry" and the report will notify you that such inquiries are also reviewed by other creditors and may remain on your report for up to two (2) years.
• Regular inquiries can actually lower your score. The more applications for credit you complete in a short period of time, the more it can harm your score.
• The other kind of inquiry is called an "Account Review." These inquiries are typically performed by your current creditors, and the inquiries are neither seen by anyone else nor do they affect your score.

Still, an inquiry into your report is an invasion of privacy, and no person or company that does not have the required permission should be looking at your report. If an unpermitted inquiry was made on your report, you have rights under the FCRA to recover any damage caused by the invasion of your privacy or if the lowering of your credit score causes any loss of credit. In addition, the FCRA provides that if a consumer is successful in bringing a claim under this law, not only could you be entitled to compensation for these damages, but your attorneys' fees and costs are to be paid by the offending party.

Do not give them any information that would allow them to get money from you. 

• Do not give out your bank account and routing number.
• Do not give out your credit card number - even if they promise not to take any money and that they just want a "show of good faith" from you. 
• Write down the names of the people calling you and get their phone numbers. 
• Be stern and confidently tell them that you will not be paying them any money unless they provide a letter on their letterhead as to who they are, where they are, exactly how much money they claim you owe, and who the original creditor is. 

Chances are they will refuse this request rather rudely and step up their assault. That's okay, don't panic. There is a good chance that these companies are either trying to pull off a scam or are otherwise engaging in improper business activities; if they don't give you a real company name and location chances are theyaren'ta real company. Many of these companies do not incorporate under the laws of any state, they have no company assets or capital, and they do not have any other real business structure. For that reason, they feel comfortable blatantly violating the Fair Debt Collection Practices Act because there is no business to bring to court.

Our experience has taught us that the more you aggressively tell them that there is no way they are getting any money from you, the quicker they will just give up on calling you. Finally, take the information you have on them, the phone number on the caller ID and the name they gave you, and report it to your local Attorney General's office.  Though we cannot expect the Attorney General to locate and prosecute each case of this that comes across their desks, enough complaints of the same pattern may spark some interest in a more wide range investigation, and put an end to illegal tactics for good. 

Obtaining a credit card for a college student can teach them a lesson in financial responsibility and the use of credit.  However, there are some important points you should know in order for this experience to work out well for both parent and student. 

Have a conversation. Have a conversation about the credit card that you are giving your child, and explain what it is to be used for, as well as what the implications are if they misuse the card. This is also a good time to talk about what a credit score is and how important it is to build a good one.

Keep a low limit. The higher limit, the greater the opportunity for a compulsive purchase. One of the most important things a college student can do for their future is to begin to build their credit. A credit score will follow you for life; a good score will help you obtain loans for life's essentials.

Read the entire statement. Don't just breeze through it; look closely at it. It is a good way to know your child's purchase patterns. Ask questions as it can be possible that your son or daughter's credit card number is in the wrong hands and some purchases were made without authorization. Follow the credit card company's dispute procedures and remove fraudulent charges. 

Pay the entire amount. When the monthly statement arrives in the mail, pay the balance in full. Leaving a balance on the card will lower your credit score plus you pay an incurred interest on the balance.

Authorized User vs. Co-signer. Authorized user and co-signer arrangements are collective in nature; they carry a considerable amount of risk. It is important to have a clear understanding of what they are.

         An authorized user is essentially a guest on your account. Your son or daughter will have charging privileges only, even if the bills are mailed to their address and are in their name. After all, the credit card company did not use their information to determine qualification and acceptance, they don't own the account and aren't legally responsible for the payments. The credit card company expects you, as the owner of the card, to pay the balance every month.

         A co-signer is when you and your son or daughter is a joint cardholder and both of you are contractually obligated to keep the account in good standing. The credit card company views you and your child as equal partners and can file a lawsuit against either of you if the account goes into default. Once you co-sign, you can't be released from the account. If the card is regularly paid off on time; your child is starting out their adult life with a positive credit rating.

When it comes to giving college student or a young adult a credit card it is best to sit down with your child and determine the best way of handling the issue of authorized user vs. co-signer.

Most states have a consumer fraud act or follow a uniform deceptive acts and practices code. Many of these require that there was either a misrepresentation or concealment of a material fact that you relied upon when making the decision to buy. Some laws also require that the reliance on the misrepresented or concealed fact be reasonable. In addition, most statutes require that you show that you have been damaged by the fraud or you did not receive the benefit of the bargain. Finally, most statutes provide that if you are successful in bringing a suit you may recover attorney's fees as well. 

Have You Been the Victim of Fraud? If you feel that you are a victim of fraud, please call our office for a free consultation. Below the examples of the more common cases of fraud; if you can relate to any of these or have stories of your own, please give my office a call.

• Misrepresenting or concealing the fact that the vehicle had been damaged or had been in an accident.
• Misrepresenting or concealing the ownership history to hide the fact that the vehicle was previously a rent-a-car.
• Concealing that the vehicle was previously a rebuilt wreck, or was considered a total loss in a prior accident.
• Misrepresenting the actual mileage on the odometer.
• Forging or altering the loan documents to alter financing terms.
• Misrepresenting financing terms or that you were financed when you were not.

Due to floods and storms throughout the Midwest this past spring, many vehicles were flooded. Ultimately, some of these vehicles are placed back into the marketplace without disclosure that the vehicle had been underwater. If your vehicle exhibits evidence of water damage such as mold, odd odors, rust under the carpets or in some of the corners of the vehicle, we can help.

There are many ways you can find out if you are a victim of a fraud; check some of the on-line databases that provide histories of vehicles (www.carfax.com and www.autocheck.com) There are laws that protect you as a consumer; if you feel that you have been taken advantage of, please call our office for a free consultation of your case.

Most extended warranties specifically state that they do not cover a pre-existing condition of the vehicle. This is similar to purchasing medical insurance; if your car has a pre-existing problem when you purchased it, then an extended warranty will not cover the repair bill when you take it into the shop. Asking questions and digging for information about the vehicle you are about to purchase from the sales person will help you determine if purchasing the extended warranty is a smart investment. Ask what, if any, mechanical problems the vehicle has had before. Ask what kind of inspection the vehicle went through before being placed on the lot for sale, and whether they have any paperwork to prove that. It important to see the paperwork to know what you are buying.

If you are at a manufacturer authorized dealer of the vehicle (i.e. you are at a GM dealership looking at a Chevy) the dealer will have warranty history reports on file and can see all the mechanical repairs performed while the vehicle was under warranty. Ask to see that as well, so you can best understand the history of the car that you are buying. Inquire about the CarFax report to see if there is a previous accident that may void any warranty coverage.

If you don't like the answers you are getting, then perhaps an extended warranty is not only a bad idea; perhaps the car (or dealership) is as well. If so, and you want to purchase an extended warranty, you are better protected.  Unfortunately, a warranty company can still deny coverage. Most often, the reason is that the condition must have been pre-existing. Having asked questions and demanded the documents as stated above, you are now in a position to be able right the wrong. You have proof that the condition was not pre-existing as the dealership showed you a clean bill of health in the way of inspection records, warranty history reports, or a CarFax report. So either the warranty provider is trying to avoid their obligation, or the dealership provided you false information to induce your purchase; if that is the case then you may be dealing with fraud.

How about an extended warranty when it comes to a new car? Some people believe that spending the money on an extended warranty on a new vehicle is a waste of money. A new vehicle comes with a manufacturer's bumper-to-bumper warranty. That's all the protection you need in the first few years.  If the vehicle has problems in those years, then an extended warranty would be useless to continue taking care of that problem. If the vehicle is repair free throughout the original manufacturer's warranty period, then a car dealer or other extended warranty vendor will be happy to sell you a new policy at the end of your warranty. 

Collectors can use Facebook and other social media to locate people.  There is debate as to whether it is time to rewrite the Fair Debt Collection Practices Act to include social media and text messaging.

To read more, see http://www.msnbc.msn.com/id/42687734/ns/business-consumer_news/t/debt-collectors-troll-facebook-are-they-going-too-far/

To learn more, see http://business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know

First, identity from children is easier to abuse than adults. There are no guardrails or routine checkups for children's credit. Thieves can build entire credit histories that go undetected for years. 

Second, a child's credit report is like a blank slate. There is no good or bad credit attached to a child's credit report.

Third, it is easier to sponge off of a child's credit report than an adult. Since there is nothing to match a new credit profile against, it is easier for thieves to take a child's social security number and mix it with another name and birthdate. If you use an adult's social security number to open a line of credit, the identifiable information must match entries in the adult's social security information which is more difficult.

Who are the offenders in this identity theft? There are organized rings, illegal immigrants, and in lower-income households, other family member

One major problem with children's credit report is that there is nothing to match a new credit profile against. This makes children's identity susceptible to fraud. The Social Security Administration does not have a role in resolving identity theft. They will correct discrepancies. The Social Security Number was originally designed to track income and provide a record for benefits. Now the role has expanded and has become the basis for basis of applying for jobs, credit cards, loans, and schools.

To learn more, read  http://www.marketwatch.com/story/childrens-social-security-numbers-easy-hit-2011-08-26 

New vs. Used:
There are good deals to be made on new cars because in August, many new car models come out.  The old ones that have not been sold need to be moved.  But there are also always deals to be made on used cars because that is the type of merchandise dealers do not want to keep around too long.  So the determination must be made as to what is the best deal.  Here are a few factors that should play a role in the decision:

• New cars come with a manufacturer's bumper to bumper warranty.  Most used cars are sold "as-is" meaning you take the risk of there being problems with the car.  While extended warranties on used cars are an option, they are often not worth the expense as there are always coverage issues.  
• New cars don't have anybody's bad history.  You are the first owner and those first miles are all yours.  With a used car, there is a history that you may not know about.  More research is required.
• Negotiating a price on a new car may be more tedious.  The dealers all have a certain amount of room to work with, but there are bottom lines to the prices.  With used cars, there is much more leeway to negotiate a better price.  
• Overall, you are really combating with Price v. Quality.  You pay more for a new car, but you also have a better quality product.
   

If You Buy New:
If you are a new car buyer, here are some tips that you should be aware of before you buy:

• Length and duration of warranty.  The warranty of a new car is its best feature.  The manufacturer warrants a vehicle free from defect, and will repair or replace any defective part free of charge.  But for how long?  Many cars are warranted for 3 years or 36,000 miles - whichever comes first.  A longer warranty than that can be very useful .  So be mindful of how much you drive. 
• Gas Mileage and the Environment:  Gas prices have soared over the last few years  In the summertime, they are typically the highest.  This has brought upon more popularity to electric vehicles and hybrids.  If you are in a pure gas vehicle, mileage per gallon is critical.  Surely you do not want to find yourself at the pump every week.  
• History of Problems with that Vehicle:  Some vehicles have a bad history.  Certain types of makes and models have issues that continue to pop up on them that manufacturers fail to correct.  Spend some time on the internet looking for chat rooms, complaint boards (see the Better Business Bureau), and even pending class action lawsuits.  This research may tell you about something in a car, such as a recurring problem, that may steer you away from getting that vehicle.
• Reputation for Service:  Often a new car will need some sort of service on it.  All cars need to be maintained to some degree.  The dealership and manufacturer team together to provide you the service you need on the car.  Poor service quality can do more than just sour your feelings toward the repair facility, it can effect your entire ownership experience.  Pleasant, efficient and effective service makes the new car buying experience better.

If You Buy Used:
If you are in the used car market, here are some important tips you should know:

• Ask Questions:  Make the sales person tell you as much as they can about the history of the car.  Ask him or her how they got that answer.  Did they get this car as a trade-in, or was it purchased at an auction?    This can factor into how much they know.  
• Order a Carfax:  Carfax.com is a website that maintains a database of vehicle histories.  You can plug in the VIN of the vehicle and get a detailed history of the vehicle.  It can tell you if the vehicle was previously a rent-a-car, a lemon, or in an accident.  You can even see how the mileage increments increased.  Many dealers will offer you a carfax report.  If they do not, ask for one.  If they refuse, a red flag should go up in your mind.  Write the VIN down, go home and get your own report.  
• Get the Repair History:  This is not always possible, but if your used car is being sold by a manufacture authorized dealer of that type of car (i.e. you are buying a used Chevy from a Chevy dealer) then you can ask for a "warranty history report."  The dealer should be able to show you all the repairs made to the vehicle under warranty.  
• Note the Mileage:  It goes without saying that the older a car gets, the more apt it is to break down.  Cars put on an average of just under 15,000 miles per hear.  Note the year of the care and the number of miles on it.  If the car averages more than 15,000 miles per year, you are getting a vehicle that has been used top greater excess than most. 
• Bring a Mechanic:   We often hear the story of how the car drove just fine at the test drive, and then within a few days, the car breaks down.  It's just amazing how the car will perform just perfectly when it needs to be bought, then breaks down once it is purchased.  Like a puppy that wants to get picked out of the litter.  Covert or lurking problems can be detected by the properly trained eye.  Bring a mechanic along if you know one. 
   
  If your new car purchase turns out to be a lemon, or the used car you purchase turns out to be something that was not as represented to you, Contact Us for a free case review. 

Defendant Debt Collectors Obtained Dismissal at Trial Court Level:
Thereafter, the debt collectors moved to dismiss the case arguing that they tendered everything that could be recovered under a case under the FDCPA.  They claimed that since the FDCPA allows for a recovery of up to $1,000 plus attorneys' fees, and the collectors tendered all of that plus a dollar, there was no longer a controversy in question.  Article 3 of the U.S. Constitution provides that the courts only hear a case where there is some controversy at stake.  That is, the one suing must be pursuing an actual harm that has occurred.  The collectors argued that since they have complied with the law and provided the complete amount of recovery, no controversy can exist any longer, and the Plaintiff no longer has standing to sue.  Their cases are moot because full payment has been offered.  Following precedent from other cases where it had been found that a full tender moots out any controversy of the case, the court agreed and dismissed all three plaintiffs' cases. 

Appellate Court Finds Controversy Still Exists without Offer of Judgment:
Thankfully, the cases were taken up on appeal, and the appellate court disagreed and reversed the decision.  The main reason is that the debt collectors may have offered to settle for a payment of the statutory maximum, but they did not offer to have a judgment taken against them as each of the plaintiffs' complaints sought.  The plaintiffs each filed a lawsuit seeking a judgment for $1,000 plus fees.  The defending debt collectors offered only to pay the money as a settlement, but not have a judgment taken against them (Federal Rule 68 allows a defending party to offer to have a judgment taken against it for a specific amount).  One main difference is that with a settlement agreement the plaintiff receives a promise to pay .  However, a judgment against a company is a legal right against a defendant which can be immediately enforced by the courts.  It is the plaintiff's legal right to payment.  This distinction of having a judgment versus a settlement agreement, the appellate court held, is the difference between making a controversy moot or not. 

Actual Damages Not Addressed:
The FDCPA allows for actual damages to be recovered (15 U.S.C. §1692k(a)(1)).  The issue of actual damages was never discussed in this opinion.  Perhaps the plaintiffs never made a request for any or never demanded any.   Or perhaps the plaintiffs never made the argument to the trial court in the motion to dismiss.  Still, the FDCPA allows such damages.  It is anticipated that debt collectors that want to get out from under FDCPA lawsuits will soon start tendering offers of judgment.  As such, should plaintiffs desire to ignore those offers, it is best that there be a strong, viable claim for actual damages. 

SmithMarco, P.C. has been protecting consumer rights with combined experience of over 25 years.  If you are being harassed by a debt collector, treated unfairly, or need assistance in resolving debts, Contact Us for a free case review.

What constitutes a threat under the law?  The Fair Debt Collection Practices Act is designed to protect consumers from threatening collectors.    The FDCPA makes it illegal to do the following:

• Call the consumer's place of work "if the debt collector knows or has reason to know that the consumer's employer prohibits" such calls.  If you  or anyone at your employment told the collector that such calls are prohibited, the collection calls at your job must stop.  If not, the collector is violating 15 U.S.C. §1692c(a)(3) by continuing to call you at work.
• Discussing your debt to a third party.  If the collector is discussing your debt to a third party, whether it is a co-worker, boss, family or friend, they are violating 15 U.S.C. §1692b(2) and 15 U.S.C. §1692c(b).  The only reason a collector can call a third party is to confirm or correct location information for the consumer. 15 U.S.C. §1692b(1)
• Threaten to take legal action that is not intended to be taken or can not legally be taken.   If the collector tells you that if you don't pay today I will sue you tomorrow, but has been saying this for weeks, then that threat is violating the FDPCA because it the threat of a lawsuit was only a scare technique.
• Using obscene language or language intended to incite the consumer.  This includes calling the consumer a deadbeat or loser.  

For the FDPCA to be applicable, the caller needs to be a debt collector and not an original creditor.  15 U.S.C. §1692a(6).

If a debt collector continues to call you at work after expressly telling them to stop, you have rights.  You can sue them under the FDCPA.  For a free case review, contact SmithMarco, P.C.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  We can sue on your behalf incurring no out of pocket costs and obtaining up to $1000 for violations.  Call today!

I get so many calls.  How do I get them to stop?

First, you need to find out who is calling you.  Everyone dreads answering calls when they don't recognize the phone number.  However, if you are getting repeated calls and these calls are bugging you, it is time to take a start answering the calls.   Find out who is calling you and why.  Get the name of company, their location and/or their phone number.

Second, find out why they are calling you. 
Do you owe the debt?   If you owe a debt and you want the calls to end, send them a written cease and desist letter.  See our website for a sample letter and instructions. 

Third, keep a log of the calls and save any voicemails.  The Fair Debt Collection Practices Act protects your rights as a consumer.    Violations under the FDCPA include: 
 • Calls before 8am and after 9pm
 • Continuous calls one after another, repeatedly
 • Calls to third parties discussing your debt
 • Calls to work after you tell them not to call at your employer.

Fourth, check to see if the calls you are receiving automated calls to your cell phone.   These automated calls are also referred to as "robo calls."  Under the Telephone Consumer Protection Act, it is a violation for a company to call with an automated dialing system to a cell phone without written permission of the owner of the phone.    This means the owner of the phone had to provide written authorization to the creditor as part of the application.  See blog.  If a company is found to be in violation of the TCPA, they could be forced to pay up to $500 per illegal call.

Most importantly,  contact SmithMarcofor a free case review.    You will be able to speak with an attorney regarding questions you have about dealing with debts and collection companies.  SmithMarco, P.C. has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

Many of these creditors or collectors are turning to automated systems to dial the multitude of numbers of consumers they call. These automated dialers also tend to leave automated messages or have automated systems when the calls are answered.  The systems make it very difficult for the innocent phone owner to force these erroneous "robo" to stop. 

One great tool enacted by Congress is The Telecommunication Consumer Protection Act.  This law provides rights to people who are receiving robo calls to their cell phone without permission.  Under the TCPA, it s a violation for a company to call:

• with an automated dialing system;
• to a cell phone
• without the express authorization of the owner of that phone.

Express authorization means that the owner of the phone either stated or provided in writing.  This can be done by providing the cell phone to the creditor as part of an application.  For instance, if you provide your cell phone to a bank when signing up for an account, you have given express authorization for a bank to use that cell phone.  It is not a defense to the company making the calls that they were given that cell number by their former customer. Courts have held that just because the creditor or collector may have had the permission to dial the number from the former owner of the number, then it does not give them permission to keep dialing the number once it changes hands.  That owner of the number must be the one who gives the permission to call.  Courts are also unmoved by the argument that the creditors' and collectors machines are unable to tell that the number has changed ownership.   If a human being would have been doing the job instead of a machine, the human could have learned that a different person was answering the phone, and discontinued calling that number.

If a company is found to be in violation of the TCPA, they could be forced to pay up to $500 per illegal call.  For consumers getting multiple calls a day, this can add up to quite a large sum.  In addition, if the conduct in continuing the calls is deemed to be a willful violation of the TCPA, the court can increase the award to $1,500 per call. 

If you are receiving continuous automated calls on your cell phone from a company you did not provide that number to, CONTACT USfor a free case review.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

What happens when the debt collector just hangs up on the recording?  Or, if the collector says nothing but leaves dead air space?  This latter scenario was recently addressed by a Federal court in Texas where it was found that such a message is not a "communication" under the Fair Debt Collection Practices Act, and therefore could not violate the  law.

In the recent case of Garza v. MRS Associates, the debtor claimed that MRS had called and left a 20 seconds of dead air on the voicemail.  The debtor alleged that this dead air message did not properly disclose that the call was coming from a debt collector and did not properly disclose the identity of the caller (also required under 15 U.S.C. §1692d(6)).  The court disagreed and found that the dead air was not a "communication" under the FDCPA.   In order for the conduct of collections to be actionable, there must be a communication from the collector.  The court stated, "In short, persuasive case law supports the idea that a voicemail is a communication only when it conveys more information than could be gathered from a missed call.  Silence does not meet this standard. Accordingly, based on the lack of a communication and because disclosure is not required on a blank voicemail as discussed above, plaintiff's claim must fail."

Many consumers call and complain that they get hang ups from collectors.  While a hang up, in and of itself, may not be actionable under the FDCPA, a vast multitude of hang-ups done with the intent to annoy or harass the consumer may very well be.  However, we have also learned here that leaving a 20 second message where no words are spoken will also not amount to a violation of the FDCPA. 

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

Are you looking for a job and getting nowhere?  Is something holding you back from employment and you don't know what it is?

Companies that perform background checks for employers are making mistakes and providing reports riddled with errors.  The Federal Trade Commission is starting to take notice and clamp down on the rule breakers.  This week  the FTC announced that an employment background screen provider, HireRIght Solutions Inc. will pay $2.6 million for failing to use reasonable procedures to assure accurate reporting.   According to the FTC, HireRight failed to use reasonable procedures to prevent inaccurate information from being provided to employers.  Additionally, they failed to give consumers copies of their reports and failed to re-investigate consumer disputes.   Instead of fighting the allegations, HireRight Solutions is paying millions to settle the FTC's allegations.  See article

A recent report released by the National Consumer Law Center on Wednesday, April 11, 2012 reveals that criminal background checks conducted on prospective employees routinely contain errors, mismatch people or misclassify criminal offenses.

If you are applying for a job and get denied after a background check, you are entitled to a copy of the report.  You should review the report carefully and dispute the errors.  To dispute the errors, see our website for specific instructions and a sample letter.   Be sure to dispute in writing and send the dispute letter by certified mail with receipt.  It is important to keep a paper trail.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

1.  If I demand in writing that the collector validate my debt, then they have to do it or I don't have to pay:
That is only true in limited circumstances.  A debt collector does not have to validate a debt any time a consumer demands it.  In the first communication, or within 5 days of the first communication if the original communication has not done so, the collector must notify you in writing regarding the debt: how much you owe, to whom it is owed, and that you have the right to dispute the debt and seek validation.  See 15 U.S.C. §1692g(a).  You must, within 30 days of receiving that letter, make the demand for validation in writing.  If you do, then the collector must provide you the validation, and must cease collection efforts until they have done so.  Outside of this window, there is no obligation whatsoever of a debt collector to provide validation of a debt under the Fair Debt Collection Practices Act.   If there was no offer of validation, that may be another issue altogether.  But once that notice is given and 30 days passes, the obligation to validate a debt is gone.  
 
2.  If my account is closed, my balance cannot go up.
This is untrue in most circumstances.  There are several different types of debt.  Most of them carry with them an interest expense.  In nearly every credit card agreement or auto loan there is a provision that provides that interest may continue to accrue on any unpaid balance.  Thus, just because the account is closed, if a balance remains interest may continue to accrue.   Even if the debt is sold to another creditor, that new creditor often buys the account and all rights that go along with it - such as the right to collect interest.  
 
3.  If there is no signed agreement between me and the collector contacting me, I don't have to pay them.
Debts are often not collected by the original creditor.  Many times a creditor will assign a debt to a collection agency for collection, and many times the debt is sold to another creditor or debt collector.  A collector does not have to have a signed agreement with you in order to collect the debt.  What they must be able to do, however, is prove a chain of title of ownership in a court of law should that collector elect to sue as a way of collecting a debt. 

4.  I can go to jail if I don't pay the debt.
Untrue.  There is no such thing as a debtors' prison.  Though many collectors of payday loans tend to make this threat and scare people with telling them they have committed check fraud, the collector has no power or authority to have someone arrested for non-payment.  Some states have even taken steps to modify laws to assure that people are not being sent to jail because of unpaid debt.  Still we have heard many stories of debtors that have been sued for a debt and found themselves being taken to jail.  There is some great confusion here, because while the debtor may think they are being taken to jail for not paying a debt, that is not at all the reason why.  A debtor can find themselves in jail is for ignoring a court order to come to court.   After the lawsuit is filed, and assuming the creditor wins and gets a judgment, the creditor can use some post-judgment tools to find out how to collect the judgment.  One tool is a citation to discover assets.  That is, they bring the debtor into court to testify under oath about what assets they have that can help pay toward the judgment.  If one ignores the request to come to court for that particular hearing, or refuses to attend, they are held in contempt of court and a body attachment (like an arrest warrant) can be placed on them.   Thus, it is not the failure to pay the debt that causes the arrest, its ignoring a court's request to be present.  You may not have any assets at all and may walk out of that hearing having had to pay nothing at all, but failing to show altogether can get you in trouble. 
 
5.  If I tell the collector I want to cease and desist all calls, then they have to stop calling me.
Untrue.  Telling the collector to stop calling you will get you nowhere.  You may tell them that the time is inconvenient or the number they are calling is a bad one to call, and they have to heed those warnings. However, a cease and desist request must be in writing.  There is much more to the topic of the proper way to request that a collector cease calls.  For more insight read our blog on the cease and desist letter.

If you need assistance making your credit report appear with maximum possible accuracy, contact us for a free case review.
 

1.  When I pay my bill off entirely, it will come off my credit report:
This is entirely untrue.  If the item being paid off was never in a negative status, then the reporting of the account can stay on indefinitely, though typically the credit bureaus remove after ten (10) years.  Negative information such as missed payments, late payments, or charge offs, can remain on a credit report for up to seven years from the date of that negative event - regardless of if or when the debt is paid off entirely.  The creditor does have to continue to report the account accurately.  That is, they cannot leave the account reported as charged off and unpaid with a balance remaining.  The creditor can report that it was paid after the charge-off or paid in full, but does not have to delete the previous negative history until that history is seven (7) years in the past. 

2.  If I did not sign any contract with a company, such as a debt buyer or collector, then they cannot report on my credit: 
Creditors sell or assign debts for collection all the time.  When they do, that collector steps into the shoes of the company from whom they got the debt.  They do have the right to collect the debt, and they do have the right to report that the debt is unpaid and/or in collections.  Just because a creditor washes their hands of a debt, it does not mean the debt disappears.  
 
3.  I can sue a creditor for reporting false information on my credit report:
This is kind of true.  Yes, you may pursue a creditor in court for reporting inaccurate and/or misleading information about you, however, it is not so straight forward.  The right to have a credit report free of errors comes from the Fair Credit Reporting Act (FCRA).  The FCRA mandates that a credit report contain "maximum possible accuracy."  If it does not, a consumer does not have an immediate right to address this in court.  Under the FCRA a consumer does not have the right to sue a creditor unless and until that consumer has first disputed the debt directly to the credit reporting agencies themselves.  The credit reporting agencies must then communicate the dispute directly to the creditor (within 5 days of receiving the dispute) and then report back the results to the consumer with thirty (30) days of receiving the dispute.  Then, if the information is not accurate, there may be a right to pursue the creditor.  However, this requires two things still (1) that the creditor is in fact guilty of failing to reasonably investigate the account pursuant to the dispute, and (2) that the consumer is damaged by the continued reporting of the account.  For information on how to properly dispute a credit report, see our page on disputing your credit report.  
 
4. If I make all of my payments on time, I will have a high credit score:
While making all payments on time is the most significant scoring factor, it does not outweigh other important factors that can keep your score down.  Payment history makes up for about 35% of your score.  However, the amounts of money owed overall is a close second at 30%.  This means factors such as how much of your available credit is used and how many accounts that contain balances have a large affect on your score.  As such, paying everything on time is great, but your score will still be affected if your credit cards are near their limits and/or there are a lot of accounts open with balances.  Also affecting your score, but not quite as much, are the history of credit - how long you have maintained credit, and the types of accounts you have open.  Even a high amount of inquiries into one's credit can affect the score.  
 
5. Disputing my credit report is a waste of time:
Sa dly, many people feel that the credit bureaus are too big to fight, and we just have to deal with whatever they report.  It's the wrong way to think.  The FCRA provides a dispute mechanism that requires the credit bureaus and the creditors to engage in a reasonable investigation into a dispute.  The more information a consumer is willing to give the bureaus about their dispute, the more chance they have at success in their dispute process.  If the credit bureaus and the creditors fail to remove information that is inaccurate, the consumer is entitled to recover any damages they have suffered, potentially $1,000 as a statutory damage for any willful or reckless conduct and any attorneys fees and costs incurred in having a lawyer represent the consumer in a case.  

If you need assistance making your credit report appear with maximum possible accuracy, contact us for a free case review.
 

And when we listen on, the call typically gives another instruction, seemingly to attempt to avoid what is inevitable - a third party disclosure.  The voice says, "If this is Jane Doe, do not listen to this message where others can hear it, there will be a 3 second pause for you to listen to this message in private."  I am sure this brings up the image for the collectors of the debtor scurrying off into a private corner to hear the message.  However, the third party who hears the message being left on an answering machine or shared voicemail has just had their curiosity level raised a notch.   

The message will go on to say that by listening to the message, they acknowledge that they are Jane Doe and can listen to this message privately.  The next comment from the collector is the proclamation that they are calling to collect a debt (a requirement of 15 U.S.C. 1692e(11)), and at that moment a third party hearing the message has just been disclosed the debt, in violation of the Fair Debt Collection Practices Act.  Do the collectors warnings protect them against violating third party disclosure rules under the Fair Debt Collection Practices Act?

The answer is a resounding - NOT AT ALL.  A debt collector that leaves a message on a voicemail or answering machine is running the risk of violating the Fair Debt Collection Practices Act.  The FDCPA is what is known as a "strict  liability" statute.  That means that a violation of the law is a violation regardless of whether it was intended or not.  Whether there was a sinister intent behind the action or it was a complete misunderstanding is not relevant.   Thus, whether the debt collector thinks he gave whoever actually answers the phone  or hears the message a chance not to hear it does not matter.  If a third party hears the message the statute has been broken.  A debt collector has no reasonable basis to believe that a non-debtor hearing that message will cover their ears and avoid it.  Human nature is at play and people will go on and listen.  Moreover, there may not be a way to avoid it.  Many answering machines are plugged into a wall and play aloud.  

Finally, many of those messages are left by an automated recording.  A machine does not know and cannot determine when the phone is answered precisely who answered the phone.  While many of us have an outgoing message that identifies that you have reached our number, many also identify clearly that the caller has reached a number of people (such as a whole family or a few roommates) that share that number.   The auto-dialing  machines cannot tell who the phone belongs to when it is answered, and as such, the auto-dialing machine will leave the message regardless.  However, if a collector has a human being make the call, this violation can be avoided.  The collector can determine by the outgoing message whether it is safe to leave a message for the debtor collecting the debt. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Thankfully, this consumer came to Larry P. Smith & Associates for help, and help we did.  A lawsuit was filed under the Fair Debt Collection Practices Act in February 2012.  When we sent out a process server with the summons and the complaint to the owner and registered agent of the corporation, he hid and attempted to avoid service.  Eventually, we were able to obtain service of the complaint. 

It appears that Creditors Collection Service had no defense for their actions.  Perhaps it was the realization that they had been caught flagrantly violating the Fair Debt Collection Practices Act, as Creditors Collection Service surrendered and acknowledged that it violated the FDCPA.   On April 5, 2012, Creditors Collection Service, pursuant to their own offer, had a judgment entered against them for violations of the Fair Debt Collection Practices Act for the entire Complaint filed against it.   Another consumer's rights were vindicated.

Contact information for Creditors Collection Service:
Creditors Collection Service, Inc.
832 Michigan Ave.
Sheboygan, WI 53081
Registered Agent and Owner: Donald A. Waage

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

If you feel that you're rights have been violated, please contact us for a free case review.

Creditors:
The most obvious is potential and current creditors.  If a finance company or bank receives an application from you for credit or for financing of some sort, be it a credit card, store card, automobile or home, that company has a right to check your credit report before agreeing to provide you that credit.   In addition, if that company does give you the loan you requested, that company is permitted to regularly check into your credit in order to monitor your continued ability to maintain the repayment agreement. 

Employers:
When applying for a job, a potential employer can access your credit report. While the potential employer can access a credit report, they can also access other background reports such as criminal background checks.  These other reports are also covered by the Fair Credit Reporting Act as we have blogged in the past.  In addition, employers can gain access to a consumers credit report or background report when that employee seeks a promotion.  Employment and promotions within employment can be subject to a successful background check.

Insurers:
When applying for any type of insurance, the potential insurer can gain access to your credit report to determine what type of risk you can be.   While insurance companies are permitted to gain access to your credit reports to determine whether they can expect you to continue paying premiums, insurance companies also utilize other reports as background checks to determine what kind of insurance risk you are so that they can set the right rates.  We have blogged about this in the past. 

Can These Inquiries to your Credit Report Harm your Score?
Inquiries generally have an effect on your credit score.  The effect is not necessarily large, unless there are a lot of inquiries for different types of credit in a short period of time.  Normally, a rare inquiry into your credit pursuant to an application for credit, employment or insurance will have a small effect on your credit score.  However, when a current creditor with whom you already have a relationship checks up on your credit -typically called an "account review" it does not affect your credit at all. 

When regularly checking your credit report, don't forget to review the Inquiries section of your credit report to assure only those who have a permissible purpose are gaining access to your report.  If a person or company gains access without a permissible purpose, they may be liable under the Fair Credit Reporting Act for any actual damages you may have suffered, $1,000 for any willful conduct, and any attorneys fees and costs incurred.

If someone has gained access to your credit report without your permission or a proper legal purpose, Contact Us for a free case review. 

Is Diversified Collection Services  Harassing You?
The complaints filed against Diversified Collection Services are plentiful. There are 129 complaints filed by in the last twelve months with the BBB and over 300 in last three years. Consumers allege that DCS makes harassing calls .  They call repeatedly at all hours.  Calls before 8am and after 9pm violate the debtor's rights under the FDCPA.

DCS has been accused of abusive behavior which including yelling and name calling.  Additionally, they call neighbors, friends, family and discuss the debt.  Under the Fair Debt Consumer Protection Act, the collector may only call a third party to obtain location information about the debtor.

There have even been complaints that DCS calls asking consumers to pay debts that are not their own.  They claim they are being pursued for non-existent student loans and other made up debts.  Others complain that DCS is difficult to work with.  They refuse to accept payments and do not return phone calls.

Diversified Collection Services Contact Information
Diversified Collection Services
333 North Canyons Parkway, Suite 100
Livermore, CA 94551
866-257-3596
Phone:   925-960-4800
Fax:   925-960-4880
www.dcswins.com

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

Is Northwest Collectors Inc. Harassing You?
There  are repeated consumer complaints about NCI's  billing practices.  The Fair Debt Collection Practices Acts provides that the collector is forbidden from making any misrepresentations of fact to you, such as how much you owe, or certain actions they may take to force you to pay them.

Some consumers allege that that makes NCI's repeated, pre-recorded calls.   The Telephone Consumer Protection Act (TCPA) requires telemarketers to obtain written consent before placing a  pre-recorded call.  If you are getting robo-calls on your cell phone, keep a log and save the messages.  
 
Contact Information for Northwest Collectors Inc.
3601 Algonquin Road, Suite 232
Rolling Meadows, IL 60008
800.635.8943
866.259-8269 Fax

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors including unwanted pre-recorded calls, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

Is Portfolio Recovery Associates Harassing you?
When a consumer sends a letter to a debt collector advising that all communications must cease and desist, a debt collector cannot continue to call to attempt collections of that debt.   When a collector communicates with you, they cannot misrepresent the amount you owe or tack on amounts to the balance that were not part of the original deal with the creditor.   Debt collection harassment and abuse is a violation of the Fair Debt Collection Practices Act.  Portfolio Recovery Associates has endured a number of lawsuits with allegations such as these. 

Portfolio Recovery Associates Contact Information
Riverside Commerce Center
120 Corporate Boulevard
Norfolk, VA 23502

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

Their website boasts that their success is from using their unique business approach by "providing a diversified range of revenue cycle management, collections and customer care services that deliver consistent, reliable performance to our clients."  In their mission, they stress "effective " collection while adhering to high ethical standards .

Is Convergent Harassing You?
Consumers have alleged that Convergent for continuing to communicate and seek collections from debtor after receiving a notice to cease and desist all communications.  Others complain that they use automated calls.  When you identify yourself, then the call is transferred to a live person, but they will not give you any information about the debt until you confirm your personal information including your social security number and home address.   Others complain that they can't get information about the debt until they provide them with their social security number. 

Convergent Contact Information
Six Concourse Parkway, Suite 2920
Atlanta, GA 30328
General: 770.730.0015
Sales: 888.858.0116

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Often times when we see the consumers' letters, we find that the cease and desist was actually done incorrectly, and therefore may be ineffective.  The common mistake that consumers make is that instead of advising the collector to "cease and desist all communications," they advise to "cease and desist all phone calls."  The consumer's letter may even go on to invite the collector to use regular mail only as a means of communication.   The problem is, this second letter is not proper under the Fair Debt Collection Practices Act language.  The statute specifically states that if the consumer advises the collector in writing to "cease and desist all communication" the collector is to heed that warning and stop all communications.  The statute does not state that the consumer can advise the collector in writing to cease only phone calls and only write letters.  The FDCPA does allow a consumer to control the time of day or even the days that the collector can all (see 15 U.S.C. 1692c(a)(1), but nowhere in the statute does it provide that the consumer can prescribe the method of communication.  It only provides that the consumer can cease all communications.

It seems very technical and not in line with what consumers are really looking for.  In most circumstances, what the consumer wants is for the calls to stop.  The reasons for this are obvious.  The calls can be embarrassing and intimidating.  As such, a consumer who is willing to put in writing that calls are not welcome, but does not want all means of communication need to be cut off, should get that benefit.  Many people do want to try to find ways to pay their debts, yet are not able to confidently communicate with the collector and negotiate a fair payment arrangement.  Still, the FDCPA is written as it is, and courts analyze each case by reading the language of the statute and giving each word its full and correct meaning.  The courts cannot read into a statute and determine how things should be. 

Therefore, when dealing with a collector that you want to have stop calling you, make the decision whether you want to cease all communication.  If you want the calls to stop, make sure your letter specifically advises to cease all communication.  For a sample letter, visit our webpage.

Is NCO Financial Systems Harassing You:
Disclosure of your debt to a third party violates the Fair Debt Collection Practices Act.  In fact, almost any communication with a third party violates the FDCPA unless the call is specifically to seek location information.  In addition, a debt collector cannot make multiple calls to a person with the purpose of harassing them.   When a debt collector contacts an alleged debtor, it is an obligation to advise that the call is an attempt to collect a debt, and the caller must make a meaningful disclosure of their identity. 

NCO Financial Systems Contact Information:
507 Prudential Road
Horsham, PA 19044

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

The amount of outstanding  student loan debt has climbed over $1 trillion, easily exceeding credit card debt.   Defaulted student loans have more than doubled since 2007.  This has raised red flags in Washington.  In March, the Obama administration proposed changing how it regulates the student-loan debt collectors it hires. Link to article.

Collectors for student loan providers can earn a substantial income.   For example -
 • Once collector earned $454,000 in one year for collecting student loan debts for Educational Credit Management Corporation (ECMC).  
 • The CEO of ECMC -- a former executive with SLM Corp. (Sallie Mae), the largest U.S. student-loan company, earned $1.1 million in 2010, making him the highest-paid head of a guaranty agency.  
 • The person who heads Indianapolis-based United Student Aid Funds Inc., the largest guaranty agency, received$775,000. Learn more.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.   Contact us for a free case review to determine if your personal debt collection consumer rights were violated.

As we have blogged in the past, the 3 main credit reporting agencies mentioned above are not the only ones.  There are different types of consumer reporting agencies that fall within the definition under the Fair Credit Reporting Act.  There are consumer reporting agencies for background checks and criminal background reports.  There are also reporting agencies for insurance companies.  These reporters provide information about how many claims one has made in the past or for how much, and allows the insurers to determine how much to charge as a premium. 

These little known companies are C.L.U.E.  (owned by LexisNexis) and A-PLUS (by Verisk Analytics).   Very few people know about these reports and would have no reason to unless they were denied insurance or quoted an exceptionally high premium.   Just as any other consumer reporting agency, these insurance reporters have the same responsibilities toward consumers as the others.  That is, you are entitled to one free report in every 12 month period and they must provide it to you.  In addition, if you find errors in the report, you can issue a dispute to the agency and they must conduct an investigation and report back the results within 30 days.   Consumers  who are harmed by the failure of these companies to perform a reasonable investigation or report with maximum possible accuracy can bring claims against these companies under the Fair Credit Reporting Act.

 For information on how to dispute your credit report visit our website or contact us for a free case review.

However, that was not the only way the violated the law, nor was it the most egregious.   What the collector did that really irked this consumer was that it sent the letter in an envelope that clearly marked on the outside that it was coming from a debt collector.   The Fair Debt Collection Practices Act, 15 U.S.C. §1692f(8) states that it is a violation of the Act for the collector to use any language or symbol on the outside of the envelope other than its address.  The collector may include the company name on the envelope as long as it does not indicate that the company is in the business of collecting debts.  The letter sent to this consumer was in an envelope that provided the full company name - which clearly indicated they were a debt collector.

This consumer wisely sought the assistance of Larry P. Smith & Associates, Ltd., who promptly filed a lawsuit against Fitness Club Collections.  This debt collector paid the consumer the maximum statutory damage award of $1,000 plus paid all of the legal costs incurred.  Though they would not Admit to their violations, they did not fight the case, and instead, satisfied the obligations they had under the Fair Debt Collection Practices Act. 

If you are getting collection letters through the mail that display on the outside, for the world to see, that you are being contacted by a debt collector, SmithMarco, P.C., can help.  Call us at 888-822-1777 or visit our website for a FREE CASE REVIEW.

As a wise consumer that seeks to register a dispute over the debt, you write in your demand for validation.  Time goes on and you never hear back from that collector.  You even start to think that they just gave up and won't collect any further.  However, weeks or months later, you receive another collection letter regarding the same account, but its from a different collection agency.   This new collection agency sends a letter with that same language on it:  advising that you can dispute within 30 days of receiving the letter and giving you the opportunity to seek validation.    Perhaps you try again, and send a dispute letter to this collector.  And again, after hearing no response from that collector, another collector comes along and writes another letter containing the same language.  When does it end?  When will someone actually respond to you?  Is this legal? 

This is a pattern we see quite often.  Consumers send in a demand for validation and instead of getting their validation, the debt is recycled to another collector who does the same thing.  You should not have to keep on issuing a dispute over and over.  The message should get passed on.

The Fair Debt Collection Practices Act provides that a collector cannot make any misrepresentation regarding the character, amount, or status of a debt. 15 U.S.C. §1692e(2)(A).  This section does not state that the misrepresentation has to be made to the consumer.  The statute is silent on that point, and as such, we can assume that a misrepresentation made to anyone about the character, amount, or status of a debt would be a violation of this section of the FDCPA.   When a consumer notifies a collector that they dispute the debt, then the status of the debt is that it is one that is disputed and in need of validation (because under 15 U.S.C. §1692g(b), the collector cannot continue collection attempts until the debt is validated).   If the collector to whom you sent the validation request does not pass on the important information that the debt is  disputed and in need of validation, then that collector has misrepresented the status of the debt to another collector or the owner of the debt.  

There can be help found in another section of the FDCPA.  15 U.S.C. §1692e(8) provides that a collector cannot communicate credit information it knows to be untrue, which includes the failure to communicate that a debt is disputed.  If a collector gets a dispute and validation demand from a consumer, then turns the debt over to another collector or the owner, and essentially advises that the debt is unpaid but that the consumer disputed the debt, didn't they just communicate credit information and fail to communicate that it is disputed?  Nowhere in this section does the statute state that the communication must be to a credit reporting agency.  Rather, it states that that the communication must be to a "person."  Therefore, a communication to someone that a debt is not paid is a communication about credit information.  The failure to pass on that dispute by the consumer would violate this section of the FDCPA as well. 

The FDCPA is designed to protect consumers from these types of practices.  Properly reading and understanding these sections of the Act can help stop problems like the constant recycling of the debt and the failure to get the validation requested. 

When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.
 

Is Accretive Health's Harassing You?
Accretive has been accused of sending debt collectors to the hospital to demand payment before receiving medical care.  The Attorney General of Minnesota has filed suit against Accretive Health.  The lawsuit alleges that the Accretive Health employees are staked out in an Emergency Room of a Minnesota hospital.  The patients are forced to wait while "financial consultations" are conducted.  This involves requesting patients make upfront payments or pay an outstanding balance before receiving care.  See article.   Accretive is not only accused of violating debt collections laws, but also for violating a federal law that requires hospitals to provide emergency care regardless of citizenship, legal status or the ability to pay.

Accretive Health Contact Information
401 North Michigan Avenue, Suite 2900
Chicago, Illinois 60611(312) 324-7820

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is National Credit Recovery Harassing you?
Many consumers complain about National Credit Recovery violating their rights under the Fair Debt Collection Practices Act.  Despite their website promise to work with consumers, there are numerous complaints that they contact third parties and discuss the debt.  One consumer said the collector contacted her old employer who discussed her debt with a former co-worker .  A third party may only be contacted to obtain the consumer's contact information.  The debt collector may only contact the third party once and can't disclose that the consumer owes a debt. 

National Credit Recovery Contact Information
416 S Main St, Suite 3
Ottawa, KS 66067
Local:   (785) 242-2744 
Toll-Free:   1-888-622-0222

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

First, was there or is there a lawsuit filed against you:  With the exception of a federally funded student loan and an agreed upon wage assignment that was not later revoked, no company can garnish your wages without first having a judgment against you.   Before there can be any garnishment, there must first be a judgment.  Before there can be a judgment, a lawsuit must first be filed and properly served.  Even after a lawsuit is filed, the consumer has every right to defend the lawsuit.  With the proper help and preparation, a judgment can be avoided. 

Second, is the company making the threat the owner of the debt:  Again, the only way to a wage garnishment is by suing and gaining a judgment.  If the person or company making the threat does not own the debt, they have no right to sue you.  They therefore have no say whatsoever on whether you will endure a wage garnishment.  Therefore, a threat from a debt collector that is merely assigned the debt to collect would be violating the FDCPA by making such a threat. 

Third, is the one making the threat an attorney licensed in your state:   Typically, when attorneys get involved in the collection of debts, the price of poker has gone up.  There is a more real concern that the legal system is going to become involved because, after all, that's what lawyers do.   However, it is very common in the debt collection industry for lawyers and law firms to use their status and stretch outside the boundaries of where they really practice law.  Many law firms send letters and attempt to collect debts from people in states where they are not even licensed to practice.  The idea is to get the debtor scared and intimidated.  However, if the lawyer is not licensed to practice law in the state where the collection is taking place, then that lawyer is nothing more than another debt collector.  That lawyer has no say in whether a lawsuit can or will be filed.  Even though they may act as an advisor to the owner of the debt, a lawyer that actually signs and files the lawsuit is the one who must make an independent determination of the veracity and viability of a lawsuit. 

If a debt collector makes a threat to take any action that he or she cannot lawfully take or does not intend on taking, such as threating to garnish ones wages when they have no right to, is a violation of the Fair Debt Collection Practices Act.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

 - Using profane language or language that is harassing or abusive
 - Calling before 8 a.m. or after 9 p.m.
 - Telling other people (family, friends, neighbors) about your debt
 - Calling you at work if you have advised them , or they have been advised, that you cannot accept these calls at work.
 - Making misrepresentations of fact to you, such as how much you owe, or certain actions they may take to force you to pay them
 - Threatening arrest or criminal prosecution
 - Sending false information to the credit bureaus
 - Causing your phone to ring an unreasonable amount of times
 
FACEBOOK and FDCPA
Debt collectors are learning how to infiltrate social network pages like Facebook.  One strategy is to portray a very attractive woman so people will accept their friendship whether or not they know the person.  Collectors can post on your Facebook wall or ask your contacts about your whereabouts.  However, the FDCPA prevents collectors from posting your debt or mentioning that you owe a debt to your contacts. 

Whether or not you are in debt, keep in mind everything you post on the Internet is out in the public domain.  A good rule of thumb is to not post anything that would not want your boss or future boss to know about.   According to Career Builders, 45% of employers check your social media presence when hiring and 35% of employers found content that lead not hiring the applicant.  See also article

If a collector informed one of your contacts about your debt, you have rights and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is National Credit Adjusters Harassing you?
Consumers have numerous complaints regarding NCA's collection tactics.  They include:
•  Collecting debts that have already been paid,
•  Collecting debts for old payday loans,
•  Contacting the wrong person,
•  Threatening lawsuits and/or implying that there the consumer is being         sued, and
•  Harassing consumer into paying debt by being rude and aggressive.

Remember, the consumer has rights under the Fair Debt Collection Practices Act.  The debt collector may not use false, deceptive or misleading tactics to collect debts.  This means the collector can not threaten a lawsuit unless the company actually intends to sue the consumer.  If the debt has been paid or if the debt is passed the statute of limitations, there can be no threat of lawsuit, implication that there is already a lawsuit or an actual lawsuit.  Plus, the collector can not use obscenities or name calling in order to pressure the collector into making a payment. 

National Credit Adjusters, LLC Contact Information
National Credit Adjusters, LLC
327 W 4th
P.O. Box 3023
Hutchinson, Kansas 67504
(888) 768-0674

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review. 

In this case, the consumer brought a fraud claim against a local car dealer alleging that the odometer did not accurately disclose the mileage on the vehicle.  Once the lawsuit got underway, after the parties engaged in some discovery, the car dealer made a motion to force the plaintiff to abide by an arbitration agreement in the sale of the vehicle.  This meant that the parties had to settle any dispute through the use of an arbitrator, forgoing the right to a jury trial.  The court granted the motion and the consumer then proceeded to attempt to bring her case to an arbitrator.  However, the car dealer was not going to let the consumer have their claim heard so fast in an arbitration either.  Instead of responding to the arbitration complaint, the dealer demanded a different forum be used than the one on the agreement, and then failed, despite repeated requests, to file any response to the arbitration complaint so that the matter could be processed. 

Having had enough foot dragging, our firm brought the matter back to the court that dismissed the case and requested that it be reinstated.   We claimed that the dealer waived the right to take this matter to arbitration.  The court agreed.  In holding that the dealers conduct amounted to a waiver, the court stated:

"Though it is entirely legitimate for a contracting party to prefer arbitration to litigation, using a contractual right to arbitration as a means of evading adjudication of a dispute is something else altogether. It is quite clear at this point that Frankie's has used the arbitration agreement as a stall tactic, the litigation equivalent of the four corners offense often used in college basketball before the NCAA adopted the shot clock in 1985. See Four corners offense . Frankie's first played along with Mulderink's effort to schedule an arbitration before the BBB, the forum that Frankie's itself had chosen, only to pull the rug out from under this effort. After insisting that it would arbitrate only before the AAA, Frankie's continued to delay, studiously ignoring Mulderink's entreaties to initiate arbitration before the AAA, even though this was (again) a forum that Frankie's had chosen. Frankie's did nothing meaningful to cooperating in the arbitration process until it after it had been called onto the carpet in court."

The case is back in court and the consumer has her right to have her case heard by a jury.  When dealing with unscrupulous car dealers who trick people into buying cars that do not possess the qualities as advertised, SmithMarco, P.C., protects the consumer.  Buy a vehicle with undisclosed damage or an odometer rolled back?  Contact us for a free case review. 

The report said that since the Sept. 11, 2001, terrorist attacks, employers increasingly have conducted background checks on prospective hires.  That has created a booming industry of Internet companies that cull public information databases for employers. But the information produced by some of those firms is riddled with errors, the report says. 

"Background screening companies routinely cut corners to improve their profits and then they wipe their hands of any responsibility for producing an inaccurate or misleading report that can cost a worker his or her job," wrote Persis Yu, the report's co-author.

The National Consumer Law Center brought up the matter of Samuel Jackson, a person we wrote about in a previous blog "The Crime of Having a Common Name".  In that story, we write about how he was allegedly denied a job after a prospective employer ran a background check that returned a 1987 rape conviction. But the man, Samuel M. Jackson, was only 4 years old in 1987. The rape conviction was for a man named Samuel L. Jackson, who was incarcerated at the time the check was run. See article. 

Situations like these are becoming more and more common as more background checks are performed, the report found. Background checks sometimes contain sealed or expunged information or omit information on how a case was resolved. A job applicant who was arrested, for example, may have been found innocent. But that outcome may not be contained in the information supplied to the employer.  In addition, some charges that may have started out as a felony, may have been reduced to a misdemeanor, though the background report still listed as a felony.  This latter situation is one we specifically dealt with successfully at Larry P. Smith & Associates. Ltd.

The report's authors urged the recently formed Consumer Financial Protection Bureau to draw up regulations to ensure that background checks are accurate and to require background-check companies to register with the bureau so consumers have an opportunity to correct false or misleading information.  The reports authors also urge the Federal Trade Commission to investigate the many companies that employers use to make sure they are not violating the Fair Credit Reporting Act, a federal law that protects consumers from false information in credit reports.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

Is National Enterprise Systems Harassing You?
Very rarely is a collector being honest when they tell you that you must make a payment arrangement by the end of that day or it is out of their hands.  However, these tactics can be used to frighten a consumer from performing investigative work before paying a debt collector.   Making any misrepresentation or utilizing any deceptive conduct to collect a debt is a violation of the Fair Debt Collection Practices Act.  It is also a violation of the FDCPA to make calls to one's place of employment knowing that the consumer cannot take calls there.  If NES is doing any of these things, you have rights.

National Enterprise Systems Contact Information:
29125 Solon Road
Solon, OH 44139-3442

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

YOUR RIGHTS AS A CONSUMER
The TCPA makes it unlawful to use an automated dialer, also known as robo dialing, to a cellular telephone unless the caller has expressed authorization.  This means if you receive pre-recorded sales calls on your cell phone without your permission, you can fight back.  Expressed authorization means the consumer somehow conveyed that the caller is authorized to use that number.  For instance, if the consumer provided their cell phone number to the caller, perhaps in an application for credit to a creditor that is calling (or has their collector calling).

YOUR HOMEWORK
If you are getting pre-recorded sales calls on your cell phone, you should answer the calls, save the caller identification and voicemails, and keep a log.  Find out what they are calling about and get information from them.  Most importantly, contact SmithMarco, P.C.,for a free case review.

YOUR DAMAGES
If you can prove that a telemarketer "knowingly" or "willfully" violated the TCPA, you sue them and the statute provides that you can receive up to $500 each violation.  It will be well-worth your time to keep answering those annoying calls. 

START HERE
When you're being bombarded by telemarketing calls, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

The process of reclaiming your stolen identity can be a very frustrating experience.  First, you need to file a police report.   Next, you contact all three credit bureaus: (1) Equifax, (2) Trans Union and (3) Experian.  This where most consumers have complaints.

Consumers complain that speaking to a real person is the tough part.  When your identity is stolen and you have a pressing question or questions, it impossible to speak to a customer service agent.   You get transferred and press numerous extensions only to lead you to a prompt asking you  to leave a voicemail or mail your questions. 

Additionally, many consumers experiencing identity theft are unaware of their rights under the Fair Credit Reporting Act.  In fact, many do not even realize they have rights.  There must be a greater effort to educate the public on their rights as consumers under the FCRA.

Another complaint is that consumers are often pressured into purchasing identity theft monitoring systems.  Spending much needed money on fees for credit monitoring might not be in the best interests of the consumer experiencing identity theft.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If information about you is inaccurately being reported, or if you are a victim of identity theft,  please contact us for a free case review.

1.  They really don't intend on suing you.
Many consumers complain that collectors call them on the phone and make threats to file a lawsuit.  If that threat comes from a debt collection attorney, then perhaps this statement could be a true statement if the attorney was hired to file the lawsuit by the company that actually owns the debt.   However, in most situations, this is not true.  What the collection agency is not telling you is that they actually have no say in whether a lawsuit could or should be filed.  That decision is to be made by an attorney that has reviewed the file.  That collection agency may refer the matter to an attorney, but the collection agency say-so on whether the consumer will be sued ends right there.

2. They really have to stop calling at work if they are advised you cannot receive calls there.
Once a debt collector has any knowledge that a consumer cannot receive these calls at work, the collector is no longer permitted to attempt to call the person at their workplace.  The Fair Debt Collection Practices Act is very clear on this point.  Moreover, this notice does not have to come in any particular form.  It can simple be told to the collector calling.

3. They cannot tell others, including your human resources department, about your debt.
A common complaint we hear is that collectors are telling people that they will contact their human resources department at work.  Seemingly, this is to make one think about a possible pending garnishment.  While a collector can make contact for the sole purpose of setting up a garnishment where there is an immediate right to such garnishment, any other contact is prohibited by the FDCPA.  If the collector does not have a judgment against a consumer, than any contact with a third party is governed by the mandates of the FDCPA, and any disclosure of the debt being owed is prohibited. 

4.  Your debt may be too old to actually do anything about it.
Most debts, such as credit cards or auto loans, are made from a contract.  When a creditor is not being paid, the ultimate tool they have is the use of the court systems to file a breach of contract case against the consumer.  However, every state has a limit on how long a creditor has to assert a claim for a breach of contract.  This is known as the Statute of Limitations.  Once the statute of limitations passes, the collector is without the use of the court systems and cannot obtain a judgment for the money.  Another collection tool they like to use is credit reporting the debt.  Having negative collections on one's credit report could propel one to pay the debt off.  However, there is a limit of time with which a debt can be reported on a consumer's credit report.  Once these dates pass, the collector is without any power whatsoever.  Sure, they legally can try to collect the debt, by using other persuasive techniques.  However, without the use of the courts or credit reporting, much of their power is gone.

5.  Debt collectors are under as much pressure to collect as you are to pay.
Most debt collectors earn their pay on a commission basis.  That is, they only get paid when they make you pay, and they only get a small percentage of what they recover for their boss.   If a debt collector is not convincing enough, they are not going to make any money for themselves.  This explains the aggressiveness.   Also, the collectors only have a limited time to obtain payment before the account is taken back by the creditor and given to another.   If they don't get you to pay in that short period of time, then they are not going to be able to pay their own bills.  

6.  Paying off a debt will not help your credit rating.
If a debt is being reported to the credit bureaus by a debt collector, is has a great effect on your credit rating.  Just its existence alone is harmful regardless if it is being reported as paid or unpaid.  Making that payment will not take the collection off your report.  It will still be seen and still cause significant harm. 

Is Pioneer Credit Recovery Harassing you?
Calls to third parties when location information is no longer needed, or disclosing your debt to a third party violates the Fair Debt Collection Practices Act.  Though a debt collector may contact someone else for the purpose of locating the debtor, they cannot divulge to that person that a debt is owed.  In fact, unless expressly requested, they cannot give out the company name.  Also, a debt collector cannot cause a phone to ring with such volume for the purposes of harassment.  If a debt collector is disclosing your debts to other people or making your phone ring constantly, you have rights.

Pioneer Credit Recovery, Inc. Contact Information
26 Edward Street
Arcade, NY 14009
(800)836-2442

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

• The company asks you to make an upfront payment even before they have done anything to repair your credit card ratings. Under the Credit Repair Organizations Act, no credit repair company can ask you to pay unless they have offered their services to repair your credit score.
• The company is silent about your rights and what can you get through them for free.
• The company recommends that you do not cause any communication with any of the three major national credit reporting companies directly. The scam company promises to do it itself.
• The company straightaway claims that it can clear all negative information on your credit card, even if that information is recent and accurate.
• The company suggests you dispute all the data on your credit report, regardless of its accuracy and the time when the report was filed.
• Finally, the company suggests that you invent a new credit identity and a new credit report successively by applying for an Employer Identification Number instead of your social security number.

You yourself can take the necessary steps to fix inaccuracies on your credit report.  If the items on your credit report are accurate - that is, they are really your debts and the status of them are being reported correctly, you should not expect much from disputing your credit report no matter who you pay or how much.  There is no obligation on the part of the credit bureaus to remove correctly reported information. 

However, if the item is inaccurate you have rights, and you can take the steps yourself, without going into your pocket for much more than a copy cost or stamps.   According to the Fair Credit Reporting Act or FCRA, a credit reporting agency has an obligation to conduct a reasonable investigation into the claims of inaccuracies on your credit report.  In order to kick off this investigation, the credit bureaus must get a dispute from you.  This can come in the form of a letter, a phone call, or through the credit bureaus' on-line dispute systems.  We highly recommend that the dispute be done in writing through regular mail.  For advice on how to make the most effective dispute, see our website for how to dispute your credit report.

Timeliness of Payments:  Obviously, if you don't pay on time, it will hurt your score.  This is true for a simple missed payment that was only days past the deadline.  The more recent the late payment, the more it will affect your score.  Take the time to make sure your bills are all in order and set to be paid in a timely manner so the creditor receives and record it before the late date.  If you can pay your bills, but are not paying them on time, then the problem is in organizing and scheduling.

Average Daily Balance / Debt to Available Credit Ratio:  Even if you may make every payment on time, your credit score can still suffer if you are using up your available credit.  High balances and maxed out cards are just as harmful as missing a payment.  If your credit report always shows balances, and those balances are close to the amount of the credit lines, then your score drops.  Whenever possible, pay down balances and don't add to them by spend unnecessarily.  Sending minimum monthly payments on time may be great for the timeliness aspect of your score but will not do anything for your balances.

History of Credit:  The longer you display a positive credit history, the higher your score.  If you are new to having credit and have had limited accounts for limited years, you will have a lower score.  For some, credit restoration is just a matter of time.  If you are new to having credit accounts, then you are in the best possible position to build a strong credit background by slowly adding accounts, maintaining low balances, and paying on time.  It is also important how long accounts have been open.  If you recently opened accounts, your score drops until you show that you can maintain those accounts for a period of time.  Newly purchased homes or cars can slow down your ability to make large purchases on credit in the immediate future. 

Type of Credit: A smaller portion of your score considers the type and prevalence of the credit you use.  Your credit can be affected by an abundance of store cards or revolving debt as compared to installment loans.  Maintaining a proper balance by not opening too many store cards will help increase your score.

Keep in mind that all of these factors will help you slowly restore your credit to a stronger standing on a more long term basis.  Still, the credit bureaus reporting this information must report your credit accurately.  If late payments are being reported that did not happen, or if creditors are not updating your balances, you have rights under the Fair Credit Reporting Act.  Contact SmithMarco, P.C., for a free consultation to assist you in maintaining a credit report with maximum possible accuracy. 

I just got served with a lawsuit.  Someone knocked on my door and handed me papers called a Complaint and a Summons.  What do I do now?

Don't panic, you are being sued.  It is probably for a debt that a creditor believes you owe, but that does not mean you owe it.  There are steps you must take to make sure that you are not involuntarily forced to pay the debt without having your day in court and a chance to defend yourself.

First, READ what you have recieved.  Read the complaint completely.  Notice who is listed as the "Plaintiff".  Is it a credit card company or is it some other company that has taken over the credit card company?  This is a debt buyer, and that may be important if and when you want to negotiate payment.  Check to make sure everything is accurate and makes sense.  Next, read the Summons.  This tells you exactly what you must do to properly respond to the complaint.  Failure to properly respond to the complaint could result in you being held "in default" and a judgment by default will be entered against you.  A judgment is the conferring of a legal right upon another.  If they get a judgment against you, then they have a legal right to the money, and they can look at your assets and wages to satisfy the payment obligation.  It is critical that you read the summons and follow the instructions as it will tell you that you need to be in court on a certain date and time, or require you to file a written answer to the complaint.

Next, you need to determine if you have a defense.  If you do, you may have to decide on a defense when you file your answer.  If you do want to defend the lawsuit, consult an attorney for the best advice on what steps must be taken to protect your rights.  SmithMarco, P.C., offers defense of debts at reasonable rates in certain jurisdictions throughout the United States.  Give us a call about your lawsuit at 888-822-1777.

You may want to work out a payment agreement.  Often the law firm that filed the lawsuit has collection agents available to work out a deal with people in your situation. Call them and attempt to work out a payment agreement.   There are two very important things:  (1) Collectors, including any lawyers, are "debt collectors" as defined by the Fair Debt Collection Practices Act.  They must follow all the law, including refraining from harassment, abuse, deception, unconscionable practices, and improper third party contact.  (2) They cannot tell you that this means you do not have to be in court, so don't skip out on your responsibility to be in court or to file your written answer on time. 

Even if you  work out a payment plan, if you do not defend the case properly (or get the law firm to agree to dismiss the case) they will go ahead and enter the judgment.  That way, if you are late with any payments on a plan, they will have the right, because of the judgment, to take action to force involuntary payment, such as a wage garnishment or a bank account garnishment.  If you do work out a payment agreement, make sure that the case is dismissed based upon the settlement, and no judgment is entered.

Remember, judgments can be put on your credit report where they will remain for ten (10) years, so be sure to take care of any lawsuit that is served upon you.  Call SmithMarco, P.C., for a free case review.

Why am I so sure?  Because the collectors that will be hired to collect these debts will not have to comply with the Fair Debt Collection Practices Act.  Indeed the FDCPA applies to debt collectors and prohibits abusive, harassing and deceptive conduct.  Thus, one would expect that a debt collector that is being abusive while collecting a debt would be in violation of the FDCPA.  The problem is that the FDCPA does not apply to every debt. 

Under the FDCPA, the term " debt" is defined as any obligation (or alleged obligation) to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family or household purposes.  The term " transaction" is emphasized here because that is a key component of a collection to fall under the FDCPA.  The debt itself must arise out of a transaction.  A transaction requires dealing and an agreement between parties.  Credit card agreements, car notes, rental leases, or other loans that are not for business are transactions. 

However, the receipt of a ticket or a fine is not a transaction.  It is a penalty or punishment in which the consumer did not voluntarily enter into.  As such, a municipal fine, a parking ticket, or an insurance subrogation claim is not a "debt" for purposes of the Fair Debt Collection Practices Act.  Collectors who obtain these accounts are well aware of this and take advantage of it.  We have witnessed many complaints of rather abusive collection tactics, only to find out it was the collection of a municipal fine, which then provides the victim of no recovery.

This is not to say that collectors collecting on these debts have open season to say or do whatever they want.  Just because the FDCPA does not apply, it does not mean that a person is left wholly unprotected.  Torts held at common law to be actionable can be effective, such as claims for intentional infliction of emotional distress.  In addition, many states have consumer fraud or deceptive business practices laws that may be beneficial if the collector committed some sort of fraud that ended up causing real damages to the debtor. 

Protecting your rights as a consumer can be tough and confusing.  If you are overwhelmed, contact SmithMarco, P.C., today for a free and confidential case review.

Ask for a car fax report.  This will tell you the history of the vehicle.  If the vehicle had been in an accident, it will reported if the vehicle has been declared a total loss. If the car was in a fender, bender, it might not be reported.

Obtain a vehicle history report. This is when you run the VIN number through the national database.  You will have a record of the repairs made and recorded under the VIN number.  If the car was declared a total loss, either from an accident or flood damage, the car will not have clean title. This will make it hard to re-sell the car and obtain car insurance.

Have the vehicle inspected by a certified mechanic.  It will be better to spend a little extra time and money to insure the car has no major problems.

Only purchase a used vehicle at a reputable dealership.  Check the Better Business Bureau to see if the dealership is rated well.   Ask your friends and co-workers if they have recommendations on where  purchase a good, used car.  If the used car lot looks questionable or shady, do not take your chances. 

Closely look at the mileage and model year of the vehicle.  If the car has a lot of mileage, it will need basic maintenance like new brakes and tires.  In addition, keep in mind that cars are not made to last forever and unexpected repairs might pop up after purchase.  se your common sense and do not expect a nine year old vehicle to have no repairs.

The Lemon Law is only applicable if the vehicle is under the original manufacture warranty, even if you purchased an extended warranty.  There needs to be three or more repairs  that are related or in the shop for 30 days or more.  For most American cars, the manufacturer warranty is three years or 36,000 miles, whichever happens first.

If your purchased a used vehicle and later find out that it was in an accident or had flood damage, you might be a victim of consumer fraudin connection with your purchase.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. Contact an attorney at our office for a free case review.  

When you write a dispute letter and what you put in that letter have implications under the Fair Debt Collection Practices Act (FDCPA).  Sometimes, it depends on whether you are responding to a collection letter, and sometimes it depends on what you want to accomplish.  There are some different scenarios:

I just found out about the collection from a letter sent to me…
The FDCPA requires that the first communication from a collector contain certain important disclosures.  For one, it must identify that the communication is an attempt to collect a debt, and any information obtained will be used for that purpose.  Also, the letter must advise you that you have the right to dispute the debt and seek validation within 30 days of the receipt of that letter.   In this instance, timing is key.  If you do want to dispute the debt, you can do that by calling or writing. - and simply explain why you dispute it.  That could be valuable if the debt collector decides to report this debt to the credit bureaus.  If the collector fails to note at that time that you did, in fact, dispute the debt, then they are violating the FDCPA.  

If you are seeking validation of the debt, that request must be in writing, and must be sent within 30 days of receiving that letter.  If you do not send a demand for validation of the debt in writing or within the 30 day period, then the collector has no responsibility to respond to you.  However, the issue now is what would you be requesting in your letter.  The case law on the issue of what is proper validation is not completely decided.  It has been held to be a question of fact that depends on the circumstances in each case.  Thus, if you seek to dispute and validate that the debt even belongs to you, then the validation demand should be clear that you do not believe you own the account and that proof should be given to show it is yours.  However, if you dispute the amount of the debt, then your demand should be for information tending to show how they got to the balance they were demanding. 

Simplicity is key.  Just because you found a long, fancy letter on-line that cites all kinds of laws, that does not mean that you are sending an effective letter.  Rather, your letter should be clear and concise, getting right to the point, so that there can be no mistake about what you were looking for.  Our website provides a great example of a proper and concise validation demand. 

I just found out about the collection from a phone call…
Again, the FDCPA requires that the  first communication from a collector contain those important disclosures mentioned above.   If the collector gives you those warnings over the phone, then as stated above, you need to send your demand for validation in writing within 30 days of that call.  However, if they do not give you that information over the phone, then the FDCPA requires that they send it to you in writing within the next five (5) days after that call.  If you do not get that letter, perhaps the collection has violated the FDCPA for not sending it, but this does not give you the right to seek validation. 

Many people believe that simply writing the collector a letter seeking validation at any time requires a response.  This is untrue.  Unless you have a writing from the collector offering to provide validation, a debt collector can ignore your request.  However, just because they can ignore some requests for validation, there are still other dispute letters they cannot ignore. 

Any letter advising a collector that you dispute the debt must be given some credence.  A debt collector receiving notice that the debtor disputes the debt must be mindful of that dispute when communicating about that debt to the credit bureaus or when they pass off the debt to other collectors.  Also, a letter that advises the collector to either cease and desist all communication or that you refuse to pay the debt must be heeded and all communications must cease.  The collector can only contact you one time after that for the purpose of advising you either that they are no longer collecting, or that there is a specific remedy they plan on invoking.  For a good example of a cease and desist  letter,  click here.

When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

The FCRA requires maximum accuracy in the creation and sale of "consumer reports," and places responsibilities upon "consumer reporting agencies" to investigate into claimed inaccuracies by consumers. The FCRA defines a "consumer reporting agency" as "any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports."

This definition tells us that not just the three most well known credit bureaus are responsible under the Act. Those same companies that give your mortgage broker a report containing information from Trans Union, Experian and Equifax, which are often referred to as "re-sellers" of credit reports, are also consumer reporting agencies" under the law. As a regular practice, and for a fee, they assemble consumer credit information for the purpose of furnishing to third parties (a mortgage lender), and they use means of interstate commerce for the purpose of preparing or furnishing those reports.　

What exactly is a "consumer report" under the FCRA? The term "consumer report" is defined as any communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used for the purpose of serving as a factor in establishing the consumer's eligibility for credit, insurance or employment purposes.　

This definition is very broad and encompasses much more than just whether we pay our bills on time. By including terms such as "character, general reputation, personal characteristics, or mode of living" Congress intended to protect consumers from a wide array of information that may be published about them not just your bill payment history. This can encompass nearly any kind of background report. Therefore, if such a report is made by a company that regularly sells such information, the Fair Credit Reporting Act is implicated. These companies must provide information with maximum possible accuracy, and must respond to a consumer's dispute and request for a re-investigation into the account.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

Is GC Services Harassing You?
The main complaint against GC Services is their rudeness to debtors.  As a consumer, the collector must behave in a certain manner.   The consumer has rights under the Fair Debt Collection Practices Act.  The debt collector can not scream, use obscenities or threaten you.  Debt collectors may not call you repeatedly or lie to you.  The debt collector must identify who he or she is and what company they are calling from.  The debt collector is not required to settle the debt or make payment arrangements.  But the collector can't threaten to arrest you or garnish your wages.

GC Services Contact Information
GC Services Limited Partnership
6330 Gulfton
Houston, TX 77081
800-756-6524 

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is Frontline Asset Strategies Harassing You?
Once a debt collector has notice that you are not allowed to take certain calls at work, the collector must not continue attempts to contact you at your place of employment.  Likewise, if the collector receives notice from the debtor in writing that demands that all communications cease, the collector cannot continue to attempt to contact you (except one time to advice you of the remedy they intend to seek).  If a collector ignores your demands to discontinue calls at work or a written demand to cease communication, then you have rights under the Fair Debt Collection Practices Act. 

Frontline Asset Strategies Contact Information
1935 West County Road B2, Suite 425,
 Roseville, MN 55113

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

The bill, H.R. 4101, is currently titled the "Fair Debt Collection Practices Clarification Act of 2012." The bill aims to specifically exempt debt collectors from liability when leaving voice messages.   The introduction of the bill states its purpose:
To amend the Fair Debt Collection Practices Act to exempt a debt collector from liability when leaving certain voice mail messages for a consumer with respect to a debt as long as the debt collector follows regulations prescribed by the Bureau of Consumer Financial Protection on the appropriate manner in which to leave such a message, and for other purposes.

The bill appears to put the onus on the Consumer Financial Protection Bureau (CFPB) to come up with language that is appropriate for debt collectors to use in a voice mail.  The bill states that:
A debt collector may leave messages for a consumer in connection with the collection of a debt on the consumer's answering machine, voice messaging system, or other similar device, including in an initial communication with the consumer, so long as the message complies with regulations prescribed by the Bureau to ensure the preservation of the privacy and other rights granted to the consumer.

How are they going to reconcile this bill with the already exiting Fair Debt Collection Practices Act when the Act already covers this scenario?    The court in Edwards v. Niagara Credit Solutions, 584 F.3d. 1350 (11th Cir. 2009) already touched upon this when it stated that "the Act does not guarantee a debt collector the right to leave answering machine messages."  It was also well covered in Berg v. Merchants Associated Collection Division, 586 F.Supp.2d 1336 (FL-SD 2008) where the court stated, "Debt collectors have no entitlement to use automated messages to reach debtors, and courts have no obligation to harmonize different provisions of the FDCPA so that debt collectors may use an inherently risky method of communication."    It appears now that Rep. Frank wants to re-write the FDCPA to give collectors the right to leave a message, and thus render moot the sections of the FDCPA that deal with third party communications.
 
The FDCPA 1692b and 1692c cover communications to third parties.  In summary, those sections provide that it is not allowed unless seeking location information.  And when obtaining location information, the collector must state that the purpose of the call is to obtain location information.  Moreover, and most importantly, the collector cannot disclose to a third party that the person they are seeking owes a debt. 

Compare this with the mandates of §1692e(11) of the FDCPA and we see where the collectors are having a problem.  That section states that in every communication, the collector must disclose that the communication is coming from a debt collector.  If the collector leaves a message stating that they are looking for a certain debtor, and the message is left on that debtor's phone, then the collector must have disclosed that the purpose of the call was to collect a debt.  However, if another member of that person's household that is not a spouse hears that message, then the collector would run afoul of §1692b(2) by disclosing that the person owed a debt.  This, the collectors are claiming, they need protection from.  Believing that they should have an absolute right to leave people messages, collectors want the passage of this new bill to ensure they can do so. 

The fact is, Congress had this law right the first time, and the courts have been properly interpreting it.  Quite simply, if a collector is calling a phone and wants to leave a message, if the outgoing message does not make it clear to them that the phone belongs to that single debtor, they should not leave a message.  It would be very interesting to see what kind of language the CFPB could come up with that covers the scenario that protects the privacy of debtors as their privacy surely comes before the collectors unwritten and unconfirmed right to leave messages. 

While potential creditors have always turned to credit reporting agencies for credit background checks of individuals, more and more potential employers are turning to criminal background checks.  Just as we have seen with credit reports mixing individuals because of similar identifying information, we are also seeing background check reports doing the same thing.  The results can be drastic.   Take for instance a recent report from NBC in Chicago about a man named Samuel Jackson.  Comparisons with the same-named famous actor likely sounded wonderful to this victim.  However, it was found that there are three other Samuel Jacksons who got mixed up into his criminal background report. They're Samuel Jacksons all convicted of sex offenses; two of whom are currently in prison.  Thus, when the innocent (and not famous) Mr. Jackson went to apply for employment,  his background check would do him in.  See article

The Fair Credit Reporting Act governs this scenario.  As we pointed out in our recent blog, Background Checks for Employment And The Fair Credit Reporting Act, the companies that provide these background checks are governed by the Fair Credit Reporting Act.  The background checks are, in fact, consumer reports under the FCRA. 

If you find out about inaccuracies on a background check or a credit report, the credit reporting agencies have an obligation under the Fair Credit Reporting Act to conduct an investigation and report with maximum possible accuracy.  If they fail to adhere to these obligations, you have rights.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is Encore Receivable Management Harassing you?
Making multiple calls throughout the day for the purpose of harassing the person at the called number is a violation of the Fair Debt Collection Practices Act.   Moreover, when contacting a debtor, the collector must make a meaningful disclosure of his or her identity, which includes identifying their company, and must advise that they are a debt collector and the call is an attempt to collect a debt.   If a collector is making too many calls to you and is not identifying who they are or the reason for their call, you have rights, and you can pursue these rights and recover statutory damages. 

Encore Receivable Management, Inc. Contact Information
Encore Receivables Management, Inc.
400 North Rogers Road
Olathe, Kansas 66062-1212
913-393-5100

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is PNC Financial Calling and Harassing You?

Be careful if you receive a letter with a court case number saying that you have been sued for failing to pay a debt.  PN Financial may call your family or employer to discuss your debt.  They might even pretend they are a law firm and scare consumers with fake court case letters or letters that falsely represent they have been sued for failure to pay a debt.

The Fair Debt Collection Practices Act was enacted to protect consumers from unfair, deceptive and harassing debt collection practices.  Under this law, a collector can not use deceptive means to collect debt like pretending that you are being sued.  Also, a debt collector can make a call to a family member, friend, relative, or neighbor in order to seek your location information only.   They may not, however, disclose that you owe a debt to anyone at any time.    If a debt collector is using these tactics, you have rights and can recover any damages you may have suffered as well as a statutory damage of up to $1,000.

PN Financial Inc. Contact Information:
7330 N Cicero Avenue
Lincolnwood, IL 60712
(847) 675-5038

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Is Praxis Financial Solutions Harassing You?
The Fair Debt Collection Practices Act was enacted by Congress to provide rights for consumers who are dealing with unscrupulous collection activities.  Causing one's phone to ring an excessive number of times can be a violation of the FDCPA.  Also, a collector cannot continue to call you at your place of employment if they have been put on notice that you cannot receive calls there.   If a debt collector is using these tactics, you have rights and can recover any damages you may have suffered as well as a statutory damage of up to $1,000.

Praxis Financial Solutions Contact Information:
7301 N. Lincoln Ave.
Suite 110
Lincolnwood, IL 60712
847-676-1111

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Adverse Action Notice:

The FCRA requires that before taking any adverse action against a consumer, such as not hiring the consumer or termination if the background check is completed after hiring, the employer must provide certain information to the consumer.  This notice is often referred to as an "adverse action notice".  An adverse action notice advises a person that a decision was made regarding his or her employment (or credit or insurance) based upon information contained within a credit or consumer report.  A proper notice advises the consumer of the name of the consumer reporting agency that provided the report, its contact information, and a statement that provides information on how to obtain a copy of that report.  The purpose is to provide a consumer the right to see the information and correct it in the event the report is inaccurate or incomplete.  That can happen, for example, if a consumer is the victim of identity theft and a crime is committed in his or her name, or if a court record is inaccurate.  The consumer then has an opportunity to set the record straight.  We have seen circumstances wherein a consumer report on an individual stated that the person was previously convicted of a felony.  However, the crime committed was a simple misdemeanor, and the person's penalty was minor.  Having a felony record obviously paints a very different picture of the applicant.

Disclosure of the Background Check and Releases of Liability:

The FCRA also regulates disclosure of information to a consumer that a background check will be performed and the need for a written authorization, including a specific requirement that the disclosure be "in a document that consists solely of the disclosure."   Many times the disclosure will contain a release of liability that purported to release the employer as well as any provider of information from any liability, claims, or causes of action related to the information obtained.  Any disclosure that contains a release of liability  must be a "standalone" document.   This means as the word states, the document must be a separate document and apart from all other information provided at that time of the application.  In fact, two previous opinions letters from the staff of the FTC have addressed release language and the standalone document issue:
 • In one letter, the FTC indicates the form should not consist "solely" of the disclosure. (See the FTC Hauxwell letter)    
 • Another letter indicates that the FCRA requires a form that is not "encumbered by any other information… (in order) to prevent consumer from being distracted by other information side-by-side with the disclosure."   (See the FTC Leathers letter)
 
The FCRA allows any potential employer to gain access to a credit report of an applicant, so refusing to sign such an authorization would not be in an applicants best interests.  Once that report is viewed and if it contains false information that prevents a person from getting employment, the FCRA protects consumers. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country and handles Fair Credit Reporting Act cases. If you feel that you're rights have been violated, please contact us for a free case review.

Is G. Reynolds Sims & Associates Calling and Harassing You?

The Fair Debt Collection Practices Act provides that a debt collector (even a lawyer acting as a debt collector) cannot engage in any conduct, the purpose of which is to harass or abuse the person.   Making threats that they do not intend to back up, calling multiple times throughout the day, the use of obscene and profane language,  and refusing to make a meaningful disclosure of the callers identity are all forms of harassment under the FDCPA.  If debt collectors are trying to harass or abuse you, they are violating the law and you have the right to sue them.

G. Reynolds Sims & Associates Contact Information:

2075 W. Big Beaver, Ste. 200
Troy, MI 48084

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C. has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

Don't Let Debt Collectors Continue to Tell Other People About your Debts:

Is a debt collector calling your family members, friends or neighbors? Under the provisions of the Fair Debt Collection Practices Act, debt collectors cannot contact other people about your debt with the sole exception of seeking your location information from that person.   Moreover, if they contacted a person to seek your location information, they cannot disclose or imply in any way that you owe a debt.  In addition, they cannot call that person more than one time (except if they believe the information given to them was untrue or mistaken).  Otherwise, there is no legitimate reason to contact other people about your debt.  If debt collectors are contacting other people multiple times or telling these other people about the debt they are trying to collect, they are violating the law and you have the right to sue them.

MIG Capital, Inc. Contact Information

5811 Memorial Highway
Tampa, FL 33615

Stop Debt Collector Harassment Now:

When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

Allegations against Asset Acceptance include the following:
 · Pursuing debts that have expired under the statute of limitations.
 · Failing to tell debtors that they couldn't be sued to collect the money being pursued by the company.
 · Encouraging consumers to make partial payments for expired debts.  By making partial payments to expired debt, the debt is   re-aged.  This revives the creditors ability to file a lawsuit and seek a judgment for the debt where that ability had already been lost.

Consumers have rights under the Fair Debt Collection Practices Act.  Consumers cannot be threatened, harassed or misrepresented in regards to payment of a debt.  As a consumer, don't wait and protect your rights by becoming informed.   
 
The Process of Debt Collection:
 · Debt collectors buy defaulted credit cards and loans in bulk for a small percentage of their original value.   
 · Many times the debts are expired under the statute of limitations. 
 · The statute of limitations is the time frame that the consumer can be sued for the debt.  These vary by state and type of debt from 2-15 years.  
 · Many times these delinquent debts come with little information about the original debt. 
 · Sometimes debt collection company goes after the wrong people or for debts that have been paid.  
 
Protecting your Consumer Rights:
 o Check out our website for what you collectors can and can not do.
 o Learn about your rights under the Fair Debt Collection Practices Act from Larry P. Smith & Associates, LLC.
 o Keep a call log of the collection calls.
 o Ask for proof of the original debt.
 o Confirm it is your debt before making payments.
 
Protecting your rights as a consumer can be tough and confusing.  If you are overwhelmed, contact us today for a free and confidential case review.

LISTEN:   Listen to the calls or messages.  Find out who is calling you and for what debt.  Don't run from the calls - answer them. Did the caller identify him or herself, the company they are calling from and the original creditor?  Under the Fair Debt Collection Practices Act, the debt collector is required to identify themselves and the purposes of the call.

LOOK:  Did you receive any bill or letter in the mail?  5 days after the initial call, the collector is required to send the consumer written notice  with the amount of debt, name of the original creditor, and that the consumer has 30 days to dispute the validity of the debt.   Check your mail and see if you received this document.  If you did, be sure to save it. If you dispute the debt, send written notice by certified mail within 30 days.   Check our website for a sample dispute letter with more detailed instructions. 

LOG:  Keep a call log of the collection calls.  Have a paper and pencil by the phone.  Each time you get a call, take notes of the content of the call, the time of the call, who you spoke with and the phone number.  Check the caller ID and also get a call back number from the caller.  Note if they are different numbers.  The more info you can provide, the better.  One way to capture proof of the call is to take pictures of the caller identification.

SAVE:  Save your call notes.  Save all communication from the collection agency, including voicemail messages and letters.  If you are unsure, save it.

By listening, looking, keeping a call log and save your documents, you will be able to have all the information necessary for a free case review.  If your rights were violated, you are ready to go!

Are they collectors calling often, threatening you or discussing your debt with family or neighbors? Find out what is legal.  Check out our website, call one of our attorneys or complete a form for a free case review.

First, pull your credit report.  You are allowed a free credit report from each of the three credit bureaus every 12 months.  Look at Experian, Equifax and Transunion reports carefully.  If there is an error or errors, dispute your credit report errors by writing a letter to the bureau reporting the error.  This letter must be sent certified mail with receipt.  To see step-by-step disputing instructions, check out our website or call 888-822-1777.  Speak to an attorney today!

Second, do not co-sign on a loan that is not yours.  When you co-sign on a loan, the bill becomes your debt.  Lenders will count this debt as yours and go after you if the other co-signer can no longer pay. 

Third, educate yourself on your rights as a consumer.  If you have debt collectors calling you, learn what debt collectors can and cannot do.    Some simple things you can do to protect yourself:
 • Save all voicemails from collectors or creditors;
 • Keep a log of the calls from creditors or collectors that detail the date, time and identity of the caller;
 • If you dispute the debt, send a letter in response to the to the collection agency's collection letters, mail the letter certified mail and keep copies for yourself;
 • Unsure what is legal and what is not? Check out our website for a free case review or call one of our attorneys today at 888-822-1777!

Fourth, if you get sued for a debt, do not ignore the lawsuit.  Do not miss the court date.  By missing a court date, you are digging a deeper hole for yourself.  Show up to court, be prepared and try to settle your case.  If you are interested in having legal representation in that lawsuit, contact our website or call us for a free case review at 888-822-1777. 

Fifth, think twice before making a big purchase.  Applying for a car loan or a department store credit card permits the lender to pull your credit report.  This might cause your credit score to drop a few points.  Then, once you make that purchase and it is financed, the account becomes a new trade line on your credit report.  You must be mindful to make those payments on time.

Sixth, think three times before buying a used car.   Used cars are typically purchased "as is."  There is no guarantee that a used car will not incur repair bills.  The older the car gets, the more it is susceptible to breaking down.   With a used car being sold "as-is," you never know what you will get.  You can check the vehicles repair history by pulling a car fax report, but that is no guarantee that your newly used car will run repair -free.  Be smart and careful when buying an older vehicle. 

RULE 2:  If you have an error on your credit report, whether it is a name, date, duplicate death or something else, dispute it.  See our website for step-by-step instructions for disputing the error or call 888-822-1777 for a free consultation.  

RULE 3:  If possible, avoid hard inquiries.  Hard inquiries or hits can hurt your credit score.  Hard inquiries are when a person applies for a loan or line of credit.  Hard inquiries include opening a department store credit card , applying for car loan or home mortgage.   The extra discount you might receive by opening up a store credit card will not benefit you long term.  In other words, if you do not need the credit, don't allow anyone to pull your credit.  The biggest mistake people make is having a friend that is in a bank or lending institution get a credit report.  It may not cost you anything for a friend to get it, but that will hurt your score as an inquiry.  If you used up your free review and need to see your report, spend the money to buy it. 

RULE 4:  Don't be a co-signer for anyone unless you fully trust them and their ability to be responsible.  Keep on them to make sure they are making payments.  If they tell you they may have to miss a payment, make the payment for them and have them pay you back.  Any missed payment can affect your score.

There are many factors to consider.  First, look at the age of the debt.  Every state has a different statute of limitations that covers how long a creditor has to file a lawsuit to seek a judgment for the debt it is owed. The statue of limitations is the amount of time a collector has to sue you for a debt.  After a certain period of inactivity on the debt (meaning no payments toward the debt), the debt becomes time barred and the collector can no longer sue you for it.  Find out the statute of limitations in your state by clicking here.  If that time has passed, and it can be as little as 3 years in some states and as much as 10 in others, then there is absolutely no responsibility to pay that debt, and no consequence for refusing to do so. 
 
Second, consider the operation of the Fair Credit Reporting Act.  Under the Fair Credit Reporting Act, negative information can only be reported for up to 7 years.  When the delinquency was fresh and recent, the effect on your credit was at its worst.  As time goes on, the effect that the delinquency has on your credit lessens.   Ultimately, it comes off altogether.   The 7 year period starts 180 days after the date of the first delinquency.   So consider how much longer this item will remain on your credit report.  There are certain exemptions to this rule like Bankruptcy and tax liens. 

Third, closely look at the information related to this debt on your credit report.  Is it your debt?  Is the date on the debt correct?  Are their any errors related to this account?  If you do not owe the debt or the debt has erroneous information, you must dispute this with the credit reporting agency.   An old debt that has been passed to different collection agencies might have incorrect information, such as the date.  Look closely at the old debts to verify that information reported is correct.

If you have an error on your credit report,  send a letter disputing the error to each credit bureau reporting the error.  For a step-by-step instructions to disputing errors, click here.  One important piece of advice is to  send your disputes certified mail, receipt requested.  Keeping a paper trail of your actions will be extremely helpful.  To view complete article, click here.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you questions or want a free case review, contact us today. 

Negative information, including a late payment, will be on your credit report until 7 years after the date of delinquency.  There are some exceptions to this rule including bankruptcy and back taxes which may stay on your report for up to 10 years. 

The Fair Credit Reporting Act mandates that your credit history be reported with maximum possible accuracy.  However, it does not actually mandate that credit reporting be performed.  That is, a lender does not have a responsibility to report your payments, but if they do report to the bureaus, the information must be accurate. Thus, you can be making all of your payments for an account on time.  The creditor is not obligated to report it under the FCRA (that does not mean, however, that they may not have a contractual obligation with the bureaus to report it).  One example we have seen is that many public utility companies will not report your account at all until you become delinquent on it.  Then, they will report the delinquency.

The Fair Credit Reporting Act requires those that report to report with "maximum possible accuracy."  If any information, negative or not, on your credit report is incorrect, the consumer has a right to dispute it.  Check out our website for detailed instructions on the disputing process.

The Fair Credit Reporting Act (FCRA) gives consumers the right to dispute a credit report and demand a prompt and reasonable investigation into the inaccuracy.  The law provides that the consumer is to receive a response to the investigation within 30 days of the date that the credit bureau first received notice of the dispute.  If they fail to do so, and fail to take notice of your complaint into the inaccuracy of their reporting, you may be able to recover your losses.  If you have errors on your credit report, contact SmithMarco, P.C. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

Of course, the best possible solution is to pay your bills on time.  But unfortunately, we do not live in an ideal world and payments might need to be late.  If you have a good payment history and know you are going to make a late payment, contact your creditor and let them know.  If you are a good customer, they might remove or waive the late fee.  Creditors can use their discretion when reporting an account 30 days late if the customer has a good payment record. 

The court reasoned that the definition of "communication" under the FDCPA included the "conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2).  The court stated that "[A] third-party "communication," to be such, must indicate to the recipient that the message relates to the collection of a debt; this is simply built into the statutory definition of "communication."  The particular fax did not mention any debt owed by Marx and did not indicate that the information sought was in order to collect a debt.  Moreover, there was absolutely no evidence provided by Marx to suggest that the recipient of the fax took it to mean that a debt was being collected.   Therefore, in this case, faxing an employment verification to a debtor's employer was not found to be a third party communication. 

This is a harsh decision for consumers, and a large victory for the debt collection industry.   It can be expected that there will be an increase in volume of faxes to employers.  Consumers have the very real apprehension that at any given point a debt collector will fax an employment verification to their employer.  Is the decision is shortsighted in that it does not consider the obvious response of recipients of these faxes?  In many smaller office settings, the receipt of such a fax would necessarily lead to some discussion as to what it means.  It could easily lead to a discussion with the debtor, which forces the debtor to admit their debt problem to their employer.  This can lead to adverse consequences at the employment.   Or, was this decision a message about developing a case under the FDCPA with the proper evidence, or using the proper statute.   A particular point the court made was that there was no evidence provided by Plaintiff to show that the fax was taken to mean that the company that sent the fax was collecting a debt.  Perhaps a different decision would result of there were evidence presented that the recipient of the fax did not just respond to the request for information, but looked further into why this information was being sought. 

Also, this particular conduct by the collector can be a form of harassment.  Consider the situation where the collector has already communicated with the debtor at their place of employment, or otherwise received information about where the debtor was employed.  There would be no need to obtain the information they are seeking.  It is a common situation where a collector has called the debtor at the place of employment.  Sending the fax is just turning the pressure up a notch.  The collector hopes that the fear the consumer has of the employer finding out about their debt woes will push the consumer into paying the debt.  As such, perhaps tackling this set of facts a different way would render different results and provide consumers the protection needed from this practice.

If you have debt collection questions, contact SmithMarco, P.C. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Contact us today for your free case review!

1. Look at the manufacture, mileage and age of your vehicle. Lemon Laws apply ONLY if your vehicle is still under the original manufacturer warranty. Having an extended warranty or power train warranty will not be helpful. Most cars have 3 years/36,000 miles, but some have 4 years/50,000. Check our website to find out where your vehicle falls. For example, if you have a 2010 Dodge Caravan with 50,000 miles, you are out of luck as the vehicle has too many miles. Still confused?  Call us.

2. Review your repair orders. How many times did you bring in your vehicle for repairs? Did you receive a repair order for each visit? Ask for a repair order each time you bring it in for repair, even if there was no actual repair performed; there should be an order stating that the problem was investigated and not found or not repaired. If you don't have all your repair orders what do you do? Go to your shop and ask for new ones. If they refuse, you can go to any authorized dealer and ask for a warranty history report.

3. If you have 3 or more repairs to the same problem, you could have a lemon. Gather up your repair orders and purchase agreement. Send your documents via email, fax or mail to us for a FREE confidential case review. By sending us your documents, we will review, with no obligations or fees.

1. Thieves do not need your credit card to steal your identity. Thieves need only one piece of information about you like your social security or birthdate. Then they have what they need. Don't give out your social security number on the phone or internet unless you have an existing relationship with that person or business.

2. A thief can easily obtain personal information about you online. Nonfinancial information is easily accessible on social networking sites like Facebook and Linkedin. Be careful and think twice before you list your address and/or birthdate on your social networking profiles.

3. Watch your monthly bills and make sure you receive your credit card statements and ordered checks. Identity thieves can intercept credit card bills to change the billing address. They can rack up a lot of charges on your credit card and write checks before you realize it is stolen.

4. Review your bank and credit card statements carefully for small charges. Thieves will test out the account by charging a small amount before making a large purchase. Fraud alerts are generally not activated by purchases under a certain dollar amount. 

5. Review your credit report regularly. You are entitled to ONE FREE COPY of each of your three credit reports every twelve (12) months by accessing this website: www.annualcreditreport.com or by calling: 1-877-322-8228.

6. If an ATM does not look right, do not use it. If the card feels differently after you swipe it or the machine looks unusual, avoid the machine or immediately cancel the transaction. There could be a credit card skimmer that will capture your information attached to the ATM.

7. Identity thieves can be sneaky, so you need to be sneaky too. For example, sign your name on the back of your credit card with a Sharpie so it can't be erased. Watch for others in line behind you trying to look over your shoulder.

8. Pay attention when you pay with a credit card. Watch the cashier take the card through the process if you can. Make sure that they are not swiping the card through another reading device. If the purchase seems suspicious in any way, check your statements for unusual activity.

9. Go paperless and become friendly with the shredder. If possible, get your monthly financial statements and bills sent to you electronically. Invest in a shredder and  shred all documents that contain personal and financial information.

10. To learn more about protecting your identity, contact my office for a free copy of our Identity Theft Kit. /blog/2011/10/11/identity-theft-kit/

Most importantly, if you have questions about your identity that remains unanswered or your credit report has errors and you don't know where to turn, give my office a call for a free, confidential case review.

What is a bank garnishment?  If there is a judgment against you, to satisfy the judgment, the creditor can garnish your wages, garnish your bank account or place a lien on personal property.  If the garnishment is for collecting taxes or a federally funded student loan, a judgment or court order is not necessary.

Is the debt collector or creditor required to give you notice prior to garnishing your bank account?  No, there is no rule requiring the prior notice before garnishing your bank account.   However, you must have received notice of the lawsuit against you by service of a summons.  Once you receive the summons and lawsuit, there is no continuing obligation to warn you of each ensuing step.

But I never knew that there was a lawsuit against me.  How can this happen?  What can I do?  You have the right to know that a lawsuit is pending against you, and that a judgment (and ultimately a garnishment) can be placed against you.   Whether you were given that knowledge will be made known by a review of the court file. 
 
The court file is a public record, meaning you are entitled at any time to see its contents.  If you are interested in protecting yourself from undue harm from this garnishment, you should go to the courthouse where this case is pending and obtain the court file.  When you obtain the court file, you should go through it and make copies of the "Complaint" which is the lawsuit filed against you, the "Summons" and any document indicating it is a "Proof of Service" or "Affidavit of Service."  This is the document upon which they claim they notified you of the lawsuit that was filed and provided you the opportunity to go to court to defend yourself.
 
If after reviewing those documents, it appears that the service was faulty (i.e. not served at your place of residence at the time) then please contact us for assistance.  We may be able to help get the judgment vacated and provide you the opportunity to defend yourself and resolve this debt in a more reasonable manner than having your wages taken from you. 

What is a default judgment?  If a lawsuit is filed against you and you do not properly respond, you may wind up having a judgment against you.  That is called a default judgment.

This is a judgment against my spouse or significant other, not me.   My name is nowhere on the judgment, can they still take my money?  No, they can not take your money, but  you need to prove to the court and creditor or debt collector that these funds are yours.   You will need to provide documentation such as paystub receipts and bank statements.  It is in your hands to prove that these funds should not be subjected to the garnishment.

What type of funds are exempt from garnishment?  This varies from state to state.  Please click here for your state's wage garnishment rules.  However, no matter where you live social security payments and unemployment benefits are exempt from garnishment.

Some helpful tips to prevent garnishment surprises:
(1)   Never ignore a summons or lawsuit.  Respond timely.
(2)   Keep a paper trail.  All communication should be verified in writing, like a settlement, and sent certified mail.
(3)   If you have a spouse that has credit problems, keep your bank account and other assets separate. 
(4)   Contact SmithMarco, P.C.,  if you still have questions.  We provide free, confidential case reviews. 

Under the Fair Debt Collection Practices Act, debt collectors have specific rules they must follow.  One, in particular, is not call the consumer's place of work "if the debt collector knows or has reason to know that the consumer's employer prohibits" such calls.  In other words, if you  or anyone at your employment told the collector that such calls are prohibited, the collection calls at your job must stop.  If not, the collector is violating 15 U.S.C. §1692c(a)(3) by continuing to call you at work. 

The collector could also be violating another provision of the FDCPA by calling you at work.  If the collector is discussing your debt to a third party, whether it is a co-worker, boss, family or friend, they are violating 15 U.S.C. §1692b(2) and 15 U.S.C. §1692c(b).  The only reason a collector can call a third party is to confirm or correct location information for the consumer. 15 U.S.C. §1692b(1)

Another important factor to determine the legality of the calls under the FDCPA is who is calling you.  Under the FDCPA, the caller needs to be a debt collector and not an original creditor.  15 U.S.C. §1692a(6)

If a debt collector continues to call you at work after expressly telling them to stop, you have rights.  You can sue them under the FDCPA.  For a free case review, contact SmithMarco,P.C. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. We can sue on your behalf incurring no out of pocket costs and obtaining up to $1000 for violations.  Call today!

The natural sense of the consumer is to feel abused if a debt collector calls more than one time a day, or even multiple times a week, even if it is only one time or less per day.  However, that is not necessarily a violation.  Surely, we feel harassed any time a collector is asking for money, but the law holds a little higher of a standard for a compensable violation.  Moreover, our opposition has crafted arguments against claims under 1692d(5) and some are successful. 

The first issue is the "called number" issue.  Many people have a home phone, a cell phone, and sometimes a work number as well.  If a collector calls each number just one time, it translates to three calls in a day to the consumer.  Is that enough for harassment?  Likely no.  Under certain circumstances it may, such as having a discussion just the day before with the collector wherein it was made clear that calls the next day would not be necessary.  However, most often those three calls will not pass for a claim because each number was just called once. 

This leads to the next issue, or defense we must face - that the calls were not made with the intent to annoy, abuse, or harass.  This is the argument that we see most often.   Collectors will claim that the attempt to call was merely to get in touch with the person and not to annoy or harass.  They will point to the fact that the calls were made various points of the day (such as 8:00 a.m., noon, and then 4:00 p.m.) to show that they were just seeing when was the best time to call.  Typically, when they do call three times in a single day, it is spread out throughout the whole day.  However, if the calls were all close in time, say within a single hour, then their excuse fails. 

Thus, whether a collector's multiple calls will be deemed harassment under the FDCPA is not cut and dry.  Ultimately, you will need to show some facts which can lead to the conclusion that the intent of the debt collector is to harass you into paying the debt. 

A final point in this area is that the person making the claim of harassment does not have to be the actual debtor.  By including the language "the person at the called number" Congress made it clear that the protection of this section extends not just to the debtor, but to anyone who has been called multiple times by the debt collector.  Thus, even if the collector has the wrong number, the person getting the calls may have a claim under the FDCPA.  We have seen this on many occasions where an innocent person received numerous calls.  The person who receives the calls warns the collector that they have the wrong number time and time again, only to continue receiving calls because someone will not update their records.  Another common scenario is when family members, usually parents, receive calls looking for their child who may owe money.  When the parent advises that their child moved out of the home years before, the collector ignores this and continues to call there looking for their money.    As it is seen here, the protections of the FDCPA from debt collector harassment extends beyond the debtors themselves. 

1.  Thieves do not need your credit card to steal your identity. Thieves need only one piece of information about you like your social security or birthdate.  Then they can get the rest.  Never give out your social security number on the phone or internet unless you have an existing relationship with that person or business.

2.   A thief can easily obtain personal information about you online.   Nonfinancial information is easily accessible on social networking sites like Facebook and Linkedin.  Be careful and think twice before publishing your address and/or birthdate.

3.  Watch your monthly bills and make sure you receive your credit card statements and ordered checks.  Identity thefts can intercept credit card bills to change the billing address.  They can rack up a lot of charges on your credit card before you realize it is stolen.  Also, they can write checks off your account by obtaining blank checks ordered in the mail.   

4. Review your bank and credit card statements carefully for small charges.  Thieves often test out the account by charging a small amount, even a few pennies before purchasing a block of credit cards.  Fraud alerts are generally not activated by purchases under a certain dollar amount. 

5.  Review your credit report regularly.  This is a good idea.  You are entitled to ONE FREE COPY of each of your three credit reports every twelve (12) months by accessing this website or by calling 1-877-322-8228.

6.  If an ATM does not look right, do not use it.  If the card feels differently after you swipe it or the machine looks unusual, avoid the machine or immediately cancel the transaction.  There could be a credit card skimmer attached to the ATM.  Skimmers are electronic devices placed in the card slot by thieves.  The skimmers capture your credit card information when you swipe it.

7.   Identity thieves can be sneaky, so you need to be sneaky, too.  For example, sign your name on the back of your credit card with a Sharpie so it can't be erased.  One person kept the "please activate" sticker on their card.  On more than one occasion, that kept thieves from taking her credit card.

8.  Pay attention when you pay with a credit card.  Make sure the clerk is not taking too much time or the customer behind you isn't looking over your shoulder.  If the purchase seems suspicious in any way, check your statements for unusual activity.

9.  Go paperless and become friendly with the shredder.  If possible, get your monthly financial statements and bills sent to you electronically.  Also, make sure to shred all documents that contain personal and financial information.  Invest in a shredder and use it frequently. 

10.  Consider investing in identity theft insurance.  This can be helpful, but make sure you read the fine print and understand the terms.   You can also contact our firm for a free copy of our Identity Theft Kit. 

Most importantly, you have questions about your identity that remains unanswered.  Or maybe your credit report has errors and you don't know where to turn.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Call now for a free, confidential case review.  We offer friendly, personal service from an attorney. To read the complete article, click here.

This got me thinking about consumer services and whether these are things we should spend out money on.  Are credit monitoring services something we should be investing in, or is this one of those things that sound like a very helpful consumer product, but is actually entirely unnecessary?

The argument against the need for it would be that the rights we all have under the Fair Credit Reporting Act truly rule out the real need to spend money on such a service.  Under the Fair Credit Reporting Act, we all have certain rights that, if properly followed, can sufficiently protect our credit rating without the need to spend additional funds on a monitoring service.  First, there is the right to obtain a free credit report once a year from each credit reporting agency .  Without once extra cent, you can contact each of the three credit reporting agencies and obtain your report once every 12 month period.  In addition, should you get denied credit, or have a current creditor take adverse action against you, you have the right to a free report.  Otherwise, the expense to purchase one more report  throughout the year is relatively cheap.  I have seen all three credit reporting agencies in a 3 in 1 for as low as $12.95 on line.  So in sum, you can see your credit report once every six months for under $13.00 for the whole year.  From my research on line, some of the more highly touted credit monitoring services are $15.00 per month. 

Should we find out that our credit report contains inaccurate and harmful information, the Fair Credit Reporting Act provides for a consumer's right to have the creditors and the credit reporting agencies perform a prompt investigation into the inaccuracy and report the results within 30 days.  We have covered this in previous articles. To read those articles, click here. 

Regardless of whether you learn of a problem with your credit through a monitoring service or from your own regular reviews of your credit report, this 30 day dispute process is a must in order to fully protect your rights under the FCRA.   Under the FCRA, you cannot recover for losses incurred prior to your dispute (unless you have evidence that the credit bureaus had some other form of notice that the account on your report was inaccurate).  If you have no plans on applying for credit in the immediate future, having a credit monitoring service would have done you no good here. 

There is good argument for the need for these services.  A credit monitoring service is good for:
>People who anticipate a need for their credit in the near future for a significant purpose such as a home refinance or auto purchase.  If you are planning on refinancing a mortgage, buying a car, renting an apartment, then you want to prepare.  A monitoring service can tell you how your score looks now, what you need to improve it, and what steps you can take over the next few months.  In addition, if something pops on your report, you would want to know about it immediately so it can be tackled right away.
>True identity theft victims.  By "true" victims, I mean that the persons identity was severely compromised by a stranger that has been opening multiple accounts in another's name.  This is a dangerous situation where large amounts of money can be effectively stolen in a relatively short period of time.  A monitoring service would alert to each and every breach. 

The rest of us, those who do not have major transactions ahead wherein a high score is a must, really should not have to spend the extra money.  The Fair Credit Reporting Act, and proper utilization of your rights thereunder, can be a sufficient monitoring tool.

The FDCPA includes in its definition of debt collector those creditors that take over an account from another  after the account is already in default.  If one is behind on a loan payment or credit card payment  with a bank, and that bank sells off its accounts , the new bank that has taken over the defaulted accounts may just have become a debt collector with respect to those accounts. 

This is something we have seen recently on a few occasions.  A consumer was unable to pay a car note resulting in a repossession.  Ultimately the vehicle was sold at auction and the creditor then sought to  collect the deficiency still owed on the loan.  Thereafter, another large auto lending institution bought the accounts of this consumer's former lender.  The new account owner then began a campaign of collections upon the account wherein the conduct surely violated the FDCPA.  Here is a great example of how a company that typically views itself as a creditor actually becomes a third party debt collector under the FDCPA. 

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you have questions regarding debt collection, need help disputing errors on your credit report, harassing debt collection calls or debt defense, check our website or call one of our attorneys now. 

Virtual credit card numbers were created to avoid giving out your credit card information. They are used when the credit card can not be physically produced to complete the transaction. These are typically purchases made on the phone or on-line. It is called "a card not present" or CNP transaction.

To create a virtual credit card number, you will need to log into your credit card account to generate a new one-time 16 digit number. The card owner can set a limit on the virtual credit card number. It creates an extra layer of financial protection. Additionally, you can still receive the miles or rewards on your regular credit card account.

There is debate, thought, as to whether this virtual credit card creates extra security or extra hassles. The card is helpful for card issuers because monetary and time limits for its usage. This helps the card issuer because the maximum liability per card is limited to $50. That is also a reason card users have been reluctant to use virtual numbers. To read more, click here.

SmithMarco, P.C.,  is a law firm that helps consumers who have had their identity stolen. We can also help with defaulted credit cards, harassing collection calls and credit reporting issues. Call now for a free review.

Allied Interstate faces up to $300,000 in penalties. The list of violations is numerous. This includes firing collectors for abusing debtors but failing to them to state regulators for breaking the law. There is one example in which an Allied Interstate collector used the code phrase "the meat is on the grill" to tell a co-worker he had stolen personal financial information from another debtor.

Allied Interstate had to pay $1.75 to the Federal Trade Commission in 2010 for collecting debts that were not owed.  To read more of their abusive tactics and the penalties imposed on these debt collectors, click here.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Debt collectors use many different tactics to convince people to make a payment to them. Some of these tactics are actually legal, some are over the line. How do you know when the collector is violating debt collection laws? Tell us about your situation and we'll review it for free to tell you whether there are potential claims under the Fair Debt Collections Practices Act.

The information contained in the Identity Theft Kit will assist in restoring your credit and good name in an efficient time frame. If you use the outline and checklist, resolution can be easier and less stressful*.

*If you find that you are unable to restore your credit using the Identity Theft Kit, please call my office at 888-822.1777 and we will help you in this matter.

On Sept 30, the FTC froze the business operations and seized the assets of this Southern California debt collection agency. The business is owned by David M. Hynes Jr. He runs the business along with his wife Loren Quiroz-Hynes and operated under different names. These names included Commercial Investigations Inc., Joseph, Steven & Associates, Specialized Debt Recovery, Forensic Case Management Services Inc. and Rumson, Bolling & Associates.

This company has been accused of harassing consumers. In one case, the debt collectors told a woman if she did unable to pay the balance due on her daughter's funeral that they were going to dig her up and hang her from a tree. They are also accused of threatening to take her dog and eat him.

This is good news for the Los Angeles County, but will it stop abusive practices in the rest of California or impact other states? For quite some time now, we have seen collectors with very similar tactics trying to collect old payday loans. We have even had our own run-in with the Rumson Bolling company. I wrote an article in our quarterly new letter which can be found at our website which discussed our encounters with this and similar companies. Consumers should be aware of these scams and armed with enough knowledge to protect themselves.

Do you have collection agencies contacting you? Check our website for a free case review or give us a call. We can help you determine if they are violating your rights under the Fair Debt Collection Practices Act.

To read more, click here 

• Collectors cannot talk to third parties without your permission. A debt collection agency cannot discuss your debt with third parties (friends, family, neighbors, co-workers, acquaintances, etc.) unless they have your express permission. Quite simply that means the debtor themselves must tell the collector that they have permission to speak with a particular person, i.e., a parent, sibling, employer or friend. This does not include spouses. Under FDCPA guidelines, a spouse is the same as the debtor regardless of whether the spouse is on the debt or not. A collector can call a husband or wife and discuss the payment of the debt.

Collectors can call third parties solely to seek your location information.

• Assuming no permission was given to the collector to speak to anyone besides you, the collector can still call a friend or relative for the purpose of locating the debtor. However there are limits as to how a collector can do this.
  • The caller must identify themselves and state that they are calling to seek a person's location information; they cannot reveal the name of the company calling unless the person called (that third party) expressly requests the company name.
  • The collector can only call that person one time unless that person requests a call back at a later time or the collector has a reason to believe that the information given by the third party is wrong or incomplete and that the person now has the correct information.

The collector cannot reveal to that third party that the debtor owes a debt.

• A collector cannot tell a third party that a debt is owed and that is why they are looking for the debtor. There are many pitfalls a collector can fall into with this part of the statute.For instance, as stated above,the collector cannot volunteer the company name to the third party. This is because, in many instances, it would reveal the nature of the call and that it was for debt collection. Another way the collector can run afoul of the law in this area is through faxing an employer an employment verification form.

The message left on the answering machine issue.

This issue is a hotbed for many legal battles. The FDCPA requires that the collector advise the debtor in each and every communication that thecommunication is an attempt to collect a debtbut the collector cannot tell anyone aside from the debtor that a debt is owed. So, what happens when there is an answering machine that is heard by multiple people in a household other than a spouse? If they leave a message on an answering machine and don't disclose that they are a debt collector, then they have violated the FDCPA. However, if they leave that message on the answering machine, and a third party hears it, they have also violated the FDCPA. Collectors claim that in this instance they are caught on a double-edged sword and they're right!

Remember, even if you are in debt, you still have rights and one of those is the right to handle your debts privately without public ridicule or humiliation.

• The credit report should have the contact information for any creditor reporting on your credit report. If not, a simple internet search of the name of the company reporting on your credit file will lead you to them. Call them and find out about it; they will be more than willing to tell you what it is for and what you owe. Get a copy of the bill from them, and if it is owed, promptly pay it.

It is extremely important that you mention to the collector that you never received a bill in the first place.

• Collectors take notes of most of their phone calls, so you want to get that comment into the notes if you can. Clearly explain that you dispute having this on your credit report, because you would have paid the bill before it went to collections.

Next, dispute the item on your credit report

• Our website has a great explanation for how to properly dispute your credit report   (click for explanation to disute your credit report) and we have provided you a sample letter.  ( click to view our sample on dealing with collectors)

Make sure your dispute is clear and includes the following very important points:

• You did not ever receive a bill or a notification of any sort that any money was still owed for the services.
• Upon receiving notice of the outstanding bill, you promptly paid it.
• You dispute having a collection appear on your report as you were never given the chance to pay the bill in a timely manner.

The credit reporting agencies will conduct an investigation and respond to you with the results of their investigation within 30 days*.

*If your credit report is not cleared up, you have rights. Contact us.

In addition to the costs, debit cards do not offer the same fraud and theft protections as credit cards. If your debit card is stolen, you risk losing everything in your bank account unless you can report it before the purchases are made.

What are your options?

(1) You can switch banks or move your account to credit union that does not charge debit usage fees.   

(2) Use a credit card and pay down the balance each month.

(3) Purchase a prepaid debit card, but watch out because they have fees, too.

(4) There is always old fashioned cash. There is no fine print when you pay in cash.

Review your bank statements and credit card bills.  Review your options and see what fits best in your situation.  To read more, click here. 

If you feel that your credit is at risk or you are purchasing a car or house, pull your credit reports.  See our webite for details.  Our firm can help you dispute errors or answer credit reporting questions. 

According to Liz Weston, there is usually an underlying problem that drives the spouse to spend. These secret debts are generally byproducts of an addiction like sex, drugs or alcohol.  Spending can also be a way for the spouse to ease stress.

If your spouse has a secret debt, there are warning signs. Generally, your spouse gets extremely irritable when the subject of money is discussed. Also, your spouse refuses to review a credit report together. But watch out! A spouse can intercept the mail or set up a different postal box to receive the concealed debt credit card invoices. The first step to avoiding this scenario is to learn to talk about finances with your spouse. Second, view a credit report together. But once the secret is out, the foundation of trust is severely damaged and will be hard, if not impossible to repair.

Learn to see whether you can divorce debt.  To read more, click here. 

You should check your credit report for errors and discrepancies. If you have debt collectors calling or suing you, we can provide a free case review.  Check out our website or call for a free case review at 1-888-822-1777.

The average amount of recovery on a delinquent debt is 20%. That is down from 30 % decades ago. The collection agency might share the amount with the business to which the consumer owes the money.  Most likely the collection agency bought the debt at a deep discount and will keep whatever it can get from the debtor.

The most common consumer complaints against collection agencies include calling a debtor repeatedly, misrepresenting the amount of debt and failing to notify the consumer of their rights in writing.

Check our website to find out more about illegal debt collection practices. If a debt collector is violating your rights under the Fair Debt Collection Practices Act, you may be entitled to up to $1,000.00 in "statutory" damages and we can help at no cost to you! Our law firm provides free case reviews. 

To read the complete article, click here.   

A women in Rhode Island received $65 worth of flowers paid for on her own stolen credit card.

This is even wackier. Jennifer Mercado was sitting on a Bronx, N.Y. jury in a credit card theft case when she stole a fellow juror's credit card. The other juror was able to figure it out because Jennifer Mercado went shopping on her lunch breaks. The shopping bags she returned with corresponded with the stores on the stolen juror's statement. She was arrested mid-trial.

One woman in south Florida paid a person to steal another individual's person identification. She used that personal information to open several credit cards. Then she proceeded to the plastic surgeon to have a few procedures including breast implants and liposuction.

This next wins for most crazy. A millionaire dentist finds a credit card outside a mall. He uses it to purchase $40 worth of pizza. In the meantime, the college student called the credit card company to cancel his credit card when the company said it was just used to purchase pizza where he lost it. The student immediately called police. The dentist was arrested while he was still waiting for his pizzas. In the meantime, he had $250 worth of cash in his wallet and had a net worth between $3 and $4 million .

SmithMarco, P.C., helps clients suffering from credit reporting problems.  Contact us for a free case review.

To read how to protect yourself and other crazy tales, click here.    

How does Social Intelligence work? It looks up to seven years of your social data history, but it stores nothing. Social Intelligence screens your history for a handful of things like violent acts, racist behavior, sexually explicit activity and unlawful acts. Basically, it looks for whether you would be the kind of employee that would create problems in the workplace.

Here is the process: Social Intelligence runs a background check of an employee. If the report does not find anything incriminating, it sends notice to the employee that the candidate has passed and no file is created. If the candidate flunks the background check, it creates a report and sends it to the employer. If you don't get a job because of your social media report, you can request a copy. All an employer sees is whether you passed or failed.

One employee has posted his entire report which failed due to past drug use. The report obscured his ethnicity, even his hands. It also blocked out a line in his homepage that reads "I drink too much beer" because it was irrelevant. It can track your personal email and tweeting. To read more and view this report, click here.

SmithMarco, P.C., can help if you are having credit reporting problems.  Call now to speak with an attorney or request a free case review! 

If you foresee a credit disaster, map out a plan. If default is looming, then pick the account with the highest monthly balance to fall behind. This will free up more money to pay your other debts. It is better to default on one big account rather than several smaller ones.

If you need to choose which debt to stop paying, pick the credit cards because they are unsecured and a creditor can't repossess anything. Defaulting on a car loan or mortgage will hurt your credit score more than a credit card. Plus, the creditor can take your automobile or house.

You can start improving your credit score by getting a secured credit card. Generally, these are the only credit cards available to a consumer after their credit has taken a beating.

To read more, click here.   

SmithMarco, P.C., can help you with credit reporting issues, debt defense and harrassing debt collector.  Call now to get your questions answered by an attorney or request a free case review. 

FICO is Fair, Isaac and Co., founded by engineer Bill Fair and mathematician Earl Isaac in 1956. It was created to help department stores and gas station chains decide when to extend in-house credit cards to customers. FICO has become the benchmark of the credit score.

FICO is a scoring model which assigns a credit score to each consumer. The credit score is used to determine whether the consumer is a financial risk and worthy of receiving credit. The score is based on a number of factors including consumers' histories of paying their debts on time, how much of their available credit they use, how many different types of credit they use and whether they have a history of unpaid debts.

FICO has created a new model, FICO 8. This model will allegedly be beneficial to millions of consumers. First, it will go easier on consumers who miss payments on small debts (Under $100) and improve their credit score. Secondly, it will help lenders make better decisions because it is more precise. This new model categorizes consumers into 16 categories. The current model only uses 10 categories.

So far, only Citibank has implemented this new model. The other big financial institutions including Bank of American and Chase Bank have yet to change over. Additionally, Fannie Mae and Freddie Mac have not done so either.

The new FICO scoring model could help millions of consumers improve their credit scores and reduce the amount of money they pay in interest. Most consumers have not noticed a change in their credit score from FICO 8 because major lenders have been slow to switch to the new scoring model.  Read more, click here.   

If your credit report has errors and you are fed up, please contact SmithMarco, P.C.  We help consumers with credit report problems.  Call an attorney now and get a free case review!

Later Leonardo Molino learned that the conviction belonged to a different Leonardo Molino. "They kick me out. They don't tell me anything and I'm up in the air. I don't know why they've left me without work."

Molino said he was fired based on false information and had to leave his family in Michigan to go to another state to find a job. He sued Roskam, the temp agency and the company providing the background information. He said he was never provided with "meaningful access to the inaccurate information prior" to his firing that was "based on patently false information."

This is disturbing news. The number of background checks prior to hiring has exploded recently. Additionally, the background checks are particularly inaccurate. Under the Fair Credit Reporting Act, employers are required to provide workers an opportunity to dispute alleged errors in background reports. But it can be difficult to detect. Prospective employees probably are not aware of mistakes that can cost them job offers. The employer is not required to tell them why they were not hired. They usually say "we found another candidate."   To read more, click here.

If your credit report has errors and you are fed up, please contact SmithMarco, P.C.  We help consumers with credit report problems.  Call an attorney now and get a free case review!

The major lesson that lenders have learned from the recession is that traditional credit scores do not determine the whether or not the borrowers could repay back the loan. Lenders need more information than the credit score of the borrower. Now lenders are taking more time scrutinizing the borrower's financial health and seeking more personal information about the borrower. In response, data companies are gathering more personal information about the consumers.

Consumer advocates support taking more care into the reviewing the consumers' credit history. However, this can still hurt borrowers. The information complied in the reports is not always accurate. Credit files can have serious errors.

Equifax, the Atlanta-based credit bureau, has been branching out into new areas of credit reporting by offering products with varying degrees of new consumer information. They have made new purchases and hold data containing income, new worth and job history for tens of millions of Americans.  To read, click here. 

SmithMarco, P.C., can help the consumer with credit history problems.  Call now for a free case review or to speak with one of our attorneys. 

But Jones was never given notice of the lawsuit. The collection company's process server claimed her nonexistent "wife" accepted the summons. The county judge approved a $992 judgment against her last year.

This scene is typical in courtrooms throughout Maryland and across the country. Companies buy past-due consumer debts and sue to collect have won judgments against even though documentation to prove those cases is very thin.

"This is a $100 billion-dollar-a-year industry … the sale of 'accounts receivable,' " said Peter A. Holland, who runs a University of Maryland law school clinic that specializes in debt cases. "It's created a crisis in our small-claims courts. There's tens of thousands of cases filed without proof just in Maryland. Nationwide, it's in the tens of millions."

Debt buyers typically purchase default accounts at a low price with little information about the debt and debtor. Then they swear in an affidavit that all the information is correct. Generally, they don't pay to acquire the necessary documentation like signed credit card agreements or a list of purchases. What ends up happening is that mistakes are made such as suing twice for the same debt, suing on debts discharged through bankruptcy, debts already paid and debts incurred by people with similar names.

To read more, click here

SmithMarco, P.C., can help with your debt troubles whether it is a lawsuit, collection calls or garnishment.  Check our website or call us.   

1. Order a copy of your credit report

You are entitled to a free copy of your credit report once every 12 months from each of the three major credit-reporting agencies: Equifax, Experian and TransUnion. This can be obtained through AnnualCreditReport.com.

2. Check the identification information

Make sure your name, address, social security, birthdate and other identifying information is correct. Small discrepancies, like nicknames, don't affect your score, but if there's a more serious discrepancy such as an incorrect Social Security number, you will need to fix it.

3. Scan your report for discrepancies or old accounts

If you see an account you do not recognize, find out more about it. Make sure it is your debt and not a mix-up.  Negative information should fall off after 7 years and 10 years for Bankruptcy.

4. Watch out for debts that appear multiple times

This can occur when a debt has been sold to a collection agency and sold numerous times. Sometimes the original creditor does not strike the balance from its records. This will appear that the consumer has two outstanding debts.

5. Dispute any mistakes

If you find an error on your credit report, dispute it.

6. Follow up

Keep notes and copies of all communication, and follow up with the disputes.

7. What not to worry

There are a couple items on your credit report that you should not worry about such as closed accounts in good standing can remain on your credit report and some credit inquiries. It is important to concentrate on what is in the report and not the actual credit score.

Read more, click here. 

A 76 year old woman co-signed on two credit cards and a Toyota truck for her adult son. The son assured his mother that he would pay the bills. Instead, he charged up the credit cards and opened another without her knowledge. Then he declared bankruptcy leaving her the debts. She was stuck with $15,000 from the co-signed credit cards, $11,000 from the Toyota loan and $5000 from the fraudulent credit card. The son had over 130 civil actions against him and his home was recently foreclosed.

The mom's only income is from supplemental social security and unemployment benefits which will run out in 8 months. She walks with a cane and has some health issues. Mom is currently looking for employment. She does not want to lose her home which she has significant equity in.

Here are some of the options explored:

1) Renegotiating the debts and their effect on your credit score,

2) Bankruptcy,

3) Reverse mortgage,

4) Give son opportunity to repay his mother,

5) Find employment, and

6) Credit counseling.

 To read more, please click here.   

Step 1
Look at the manufacture, mileage and age of your vehicle. 
The lemon law applies ONLY if your vehicle is still under the original manufacturer warranty.  Having an extended warranty or power train warranty will not be helpful.     Most cars have 3 years/36,000 miles, but some have 4 years/50,000.   Check our website to find out where your vehicle falls.

For example, if you have a 2010 Dodge Caravan with 50,000 miles, you are out of luck.  The vehicle has too many miles.  Still confused?  Call us.

Step 2
Review your repair orders.  How many times did you bring in your vehicle for repairs?  Did you receive a repair order for each visit?  You need to ask for a repair order each time you bring it in for repair, even if there was nothing done to the vehicle get a repair order.

If you recycled all your repair orders.  What do you do?  Go to your shop and ask for new ones.  If they refuse, you can go to any authorized dealer and ask for a warranty history report.

Step 3
If you have 3 or more repairs, you might have a lemon. Gather up your repair orders and purchase agreement.  Send your documents - email, fax or mail- to us for a FREE, confidential case review. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. By sending us your documents, we will review - no obligations, no fees, only a review .

Step 4
My vehicle is a lemon!  Now what?  We can handle your case.  It will be a win-win for you.  First, there will be no out of pocket cost to hire us.  Our fees are paid for by the defendant.  Second, we deal with the automobile company for you and take that hassle out of your life.

Step 5
What is the benefit for you, the consumer, who was sold a lemon vehicle?  The possible remedies if my car is lemon include forcing the manufacturer to refund the purchase price of the vehicle (less an amount for usage as calculated by statute), the diminished value at time of purchase,  or any other out of pocket expenses.

If you only have a few questions, please do not hestitate to contact SmithMarco, P.C.  Call us on our toll free number 888-822-1777 or send an email.   

Under the FDCPA, a debt collector can only contact a third party to obtain location information about the debtor.   The collector can not indicate, verbally or written, that he or she is trying to collect a debt or in the debt collection business.   Even when the collector is mailing you a letter, it must be careful of what they are mailing.   If the collector uses a letter or postcard to contact you, it is violating the FDCPA's prohibition of using any post card for communication.  Moreover, the collector can not use " any language or symbol on any envelope" or mail that indicates that the debt collector is in the debt collection business.   Therefore, when a debt collector sends you a letter and the envelope it is contained in states that the company sending the letter is a debt collector, or the company name has the term "Collectors" or "Collections" in it as it appears on the envelope, the mailing of that letter violates the FDCPA. 

Being stuck in financial troubles is not easy.  It is hard to answer the calls and talk with collectors about bills that you have no way of paying.    However, just because you can't pay your bills does not mean you do not have rights.  It is still important to protect your rights as a consumer.  Answer the calls.  Find out who is calling.  Keep a pad of paper by the phone and keep a log of the calls.  The collectors can not harass you, use obscene language, call repeatedly or lie to you.  If you have questions about whether your rights as consumer have been violated, contact SmithMarco, P.C., for a free case review.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

There is an exception to this rule.  If the student loan was in default, then the account taken over by a new collection agency, the FDCPA rules will be applicable.   The FDCPA includes in its definition of debt collector those creditors that take over an account from another  after the account is already in default.  If one is behind on a loan payment or credit card payment  with a bank, and that bank sells off its accounts , the new bank that has taken over the defaulted accounts may just have become a debt collector with respect to those accounts. 

What does it mean if the collector for the student loan must follow the FDPA rules?   You have rights as a consumer when a debt collector is pursuing you.   Debt collectors cannot:

• harass or abuse you
•  make your phone constantly ring intending to annoy you
• make misrepresentations to you about what it is they may do if you don't pay, or how much you owe, or anything that may be misleading 
• tell other people about your debts
• call your place of employment if your employer does not allow such calls

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. Contact us for a free case review to determine if your personal debt collection consumer rights were violated.

The Collector is Required to Give you Written Notice Advising You of Your Rights
Under the Debt Collection Improvement Act of 1996, the U.S. Department of Education must mail you written notice at least 30 days before it begins to garnish your wages.  They must advise you about the nature and amount of the debt, as well as the fact that the agency intends to initiate garnishment.  In addition, the notice must state that you (1) have the right to inspect and copy records, (2) enter into a repayment agreement, and (3) request a hearing about the existence, amount, or current enforceability of the debt, the rate of withholding, and whether you have been continuously employed less than twelve months after an involuntary separation from employment.

What To Do If You Receive A Garnishment Notice
If you request a hearing in a timely manner (on or before the thirtieth day following notice of garnishment) then the garnishment cannot not proceed until after the hearing.   While you can still ask for a hearing once a garnishment begins, the garnishment itself won't stop.  As such, it is critical to get the request for hearing in promptly after receiving it.

Also, the "Request for Hearing" form allows you to choose between a written record, in-person hearing, or telephone hearing.  As such, if personal attendance at a hearing is difficult, you can elect to have it over the phone or have your positions submitted in writing.   A hearing can reduce the amount you owe and delay the garnishment.

Debt Collectors that Collect Student Loans Are Not Exempt from the FDCPA.
The Fair Debt Collection Practices Act applies to all collectors that are collecting consumer debts.  That the debt is one that is the governments is of no consequence.  A collector cannot harass or abuse you, call third parties for reasons other than to seek your location information, make misrepresentation or threats to you.  Most importantly, they cannot tell you that you do not have any of the rights as discussed above. 

The attorneys of SmithMarco, P.C., a debt collection law firm, has over 30 years of combined experience practicing law protecting the rights of consumers around the country. Contact us for a free case review to determine if your personal debt collection consumer rights were violated

It is a violation of the Fair Debt Collection Practices Act to call a consumer at their place of employment after receiving notice that the consumer cannot accept calls there.  It is also a violation of the FDCPA to harass a person by making multiple  phone calls to them.  A debt collector cannot disclose your debt to a third party or imply that a crime was committed.  As such, the conduct of FACS by this consumer was indeed a violation of the law.

This consumer came to SmithMarco, P.C., for assistance and advice.  We took on representation and filed a lawsuit against FACS for multiple violations of the FDCPA.   Rather than even attempt to answer the lawsuit and defend themselves, First Alliance Check Systems wisely sought to settle the lawsuit.   FACS agreed to pay the consumer statutory damages and all of her attorney fees - so she did not have to spend any money of her own to get our help.

First Alliance Check Systems Contact Information:
FACS is a debt collection agency that is located out of upstate New York.   They provide a mailing address of:
PO BOX 259
Amherst, NY

But have a registered address of :
33 Rinewalt Street
Williamsville, NY 14221

Stop Debt Collector Harassment Now:
When you're being pursued by debt collectors, you have rights,  and we're here to help. SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.

One common misconception is that a divorce decree, coming from the court, means you don't owe the money anymore.  That's not necessarily true.  The divorce decree is only an agreement, or legal recognition of legal obligations between the two spouses only.   Any person or company that was not part of that court proceeding cannot be bound by the court proceeding.  They never had their day in court, and perhaps would have argued to the court that the other spouse should be responsible for the bill because, perhaps, they are a better financial risk.  In the end, if the spouse that assumes responsibility for an account does not pay, the remedy is only against that spouse, and not the creditor.  If the creditor had a contract with both spouses, the creditor can look to either one for payment regardless of whether a divorce decree only says one of them is responsible. 

Here are some steps to take to protect your credit:
1) Keep your credit separate as much as possible.  Homes and cars typically need both of you to co-sign, but credit cards should not.  Any credit you have had before marriage should not be altered to put the other on as a co-signer.  You can make your spouse an authorized user on the account without making them a co-signer.
2) After a divorce, do your best to keep up on how the other is doing with their payments on these accounts.  If you able to communicate with them about it, that's great.  However, it being a touchy subject, that is not always an option.  Watch your credit report.  You can buy into credit monitoring systems to watch your credit report and notify you the moment something goes wrong.  From that point, you can take steps to correct or minimize the harm to your credit. 
3) Beware of debt collector harassment.  Collectors will call without knowledge or care that the account was supposed to be paid by the other spouse.  They will tell you that you owe it (they may be right) and threaten you with litigation.  Regardless of whether you may owe the debt, debt collectors cannot violate the Fair Debt Collection Practices Act. 
 
To read more, click here.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country have been protecting consumers since 2005. If you need help disputing errors on your credit report, harassing debt collection calls or debt defense, check our website or call one of our attorneys now. 

The first is the potential that the person you are signing with won't be able to make the payments.  Whether it's a good reason like illness or disability, or a bad reason like irresponsibility, the effect on your credit is the same.  If the person does not make their payments, the creditor will then look to the co-signer.  If the creditor does not get their money, everyone's credit reports will suffer.

Secondly, if you, the co-signer, decide that you no longer want to be part of the contract, you are stuck.  Once you are part of the contract, the only party that can let you out is the creditor themselves.  No matter what agreement you may have made with the other co-signer, if your name is on the contract with the creditor, the creditor can ask you for payment.  This often happens during divorces.  If spouses who co-signed on credit accounts obtain a divorce, even though the decree may designate one spouse as the responsible party, the creditor can still look to both.  Again, the creditor has the right to be part of the decision to allow one of the co-signers out.

Another disadvantage is in the case of a car loan.  Often the co-signer has no possession or use of the vehicle.  They simply co-signed so someone else could drive the car.  If the car breaks down, is destroyed or damaged, the potential for missed payments increases greatly.  If the co-signer does not live with the person who has the vehicle, payments may be missed unbeknownst to the co-signer until the creditor calls for payment.

While co-signing for another person may be admirable, there are potential disadvantages for co-signer.  Before signing the agreement, sit down with the person seeking your help and gauge what kind of risk they will be.  Just like the creditor wants to make sure their new customer is a good bet, you want to make the same determination.

This story and many others just like it are popping up all over as more and more companies turn to internet background checks.  What is a person to do? 

As we have written in the past, these background checks and the companies that provide this information are subject to the Fair Credit Reporting Act.  That means, the company that provides the background information has a duty to report with maximum possible accuracy, and has a duty to conduct a prompt and reasonable reinvestigation into the accuracy of their report once challenged by the consumer.

If you are denied employment because of the background check, find out the name of the company that provided the background check.  Companies such as Lexis/Nexis, Accurint or HireRight Solutions to name a few are ones that provide this information.  Contact that company and demand to see a copy of your report.  According to the FCRA, they are obligated to provide you a report free of charge if you were denied employment based upon their report.  Once you obtain the report, dispute the information that does not belong to you directly to the background reporting company.  By law, they have 30 days to conduct an investigation and report the results back to you.  A failure on their part to do any of the above violates the FCRA.

If you are losing employment because of inaccurate information in a background check report, CONTACT US for a free consultation.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

The case was filed in 2009, and in April of 2011 the court ruled for the Plaintiff's on a motion to dismiss the case, thereby paving the way for this class action to proceed.  In March of this year the defendants settled the case.  The class representatives will receive between $7,500 and $10,000, and the remaining class member will receive up to $500.  However, any pending legal actions against the debtors will be dropped and the debts will be removed from their credit reports.   A great victory for consumers!

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Contact us today for a free consultation. 

What is Re-Aging:

A negative mark can only remain on your credit report for up to seven years.  When a payment is missed, the missed payment notation will come off the credit report 7 years after the missed payment occurred.  When an account is charged off as a bad debt, the entire account will be removed after 7 years from the charge off.  Re-aging is when something is done in the credit reporting to cause the account to remain on a credit report for longer than 7 years. 

It is not always evident or easy to find.  When a debt is being reported, it is reported with other information such as when the account was opened, when it was closed, the last balance, the highest balance, as well as other status information on the account.  Usually, the 7 year reporting is linked to a certain data field that is being reported that is either the date of last payment or the date last major delinquency was reported.  What some collectors have been known to do is change those dates on the credit report to be more recent.  Where a negative report of a charge-off that occurred in 2005 would be removed this year, if a collector were to instead report that the charge off occurred in 2010, the account will continue to be reported as a negative until 2017 - long past when it should be reported.   This practice violates the Fair Debt Collection Practices Act which provides that reporting credit information that is known or should be known to be incorrect is a deceptive act.

What is NOT Re-Aging:

Too many people get confused with this concept of re-aging.  Often, a consumer will see a collection item on their credit report and the collector will report a "date opened" on the report. This reflects when the collector opened the file in their office - in other words, when it was first assigned to them.  The misconception is that the "date opened" date is the 7 year date.  This is not the case.  It does, however,  have an effect of getting consumers to call the collector to complain about it- thereby giving the collector another chance at pressuring for money.  

When reviewing the credit report, don't pay attention to the date the collector says it was opened.  Look for the last delinquency date or last payment date.  If the collector does not report it, search the rest of the credit report for the original creditor which will report the date that it was charged off.  If the account remains on the credit report for more than 7 years since the last delinquency or charge-off date, then the collector re-aged the account

Why is affects us:

Re-aging can have a large detrimental effect on a credit score.  Items that are delinquent have a greater affect when they are newer, and over time they diminish in value.  As such a 6 year old delinquency is not as harmful as a 3 or 4 year old delinquency, and is much less harmful than a 1 year old delinquency.  Therefore, re-aging causes the debt which may be old, or even ready to come off a credit report, as a newer and more harmful mark on your report. 

If your credit report has errors or debt collectors are reporting false information about you, CONTACT US for a free case review.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

The Fair Debt Collection Practices Act provides a statutory scheme for a consumer being met with a debt collection to obtain the validation they need.  The FDCPA states that within 5 days after the initial communication with a consumer in connection with the collection of any debt, a debt collection shall send the consumer a written notice containing (1) the amount of the debt (2) the name of the creditor to whom the debt is owed, (3) a statement that provides the consumer information on how to dispute the debt and seek validation in writing from the creditor. (15 U.S.C. §1692g(a))  This is, however, the ONLY time a debt collector has to provide a validation when asked by the consumer.  That is, to be clear, a consumer only gets validation when making the demand in writing within 30 days after receiving a letter that advises them they may do so. 

What happens to our consumer facing a lawsuit that does not receive that letter?  How can they get validation?  Here are two ways to play this out:

1)  Go the court route:

Many people are intimidated by litigation and court.  That can be understood.  It is a place for lawyers and judges and when you are not one of them, you are a fish out of water in that courtroom.  However, you can make the system work for you.  Read the summons.  It is a very important document that will tell you the proper way to answer the complaint.  You may have to file a written answer with the clerk, or you may have to just appear.  Either way, a failure to comply with the directions on the summons will most certainly end up with a judgment being entered.  
 
Once you have properly answered, you will likely be given a court date.  In court, each party is entitled to discovery - that is, to learn about the claims or defenses being brought forth.  A simple request in court may be all that is needed.  Otherwise, one should (if not armed with an attorney) review the local court rules for how to issue discovery requests and obtain the documents.  It is important to remember that when a creditor files a case against a consumer, the filer - the creditor- has the burden of proof.  They cannot hide their proof from the consumer.  They have to turn over what they will be presenting in trial.  So simply asking for that would help. 
 
2)  Force the Validation letter issue:

As stated above, the debt collector (which includes lawyers collecting debts) must provide you with a specific notice within 5 days of their first communication with you.  The lawsuit itself is not considered a communication with the consumer under the FDCPA.  However, a phone call from a consumer is considered a communication.  Thus, it would be wise to call the collector/lawyer that filed the lawsuit.  Contact the collection lawyer and ask what the debt is about.  Make sure to mention very clearly that nothing has ever been received by mail before this lawsuit.  Ask if they will be sending you something in the mail.  Whether they plan on it or not, they are supposed to at that time.  
 
If and when the letter comes in the mail, the consumer has 30 days to demand validation.  Once the request is made, the collector cannot go on collecting the debt (that is, they cannot prosecute their lawsuit) until the debt is validated.  On the other hand, if the collector fails to send anything in writing, then they may have run afoul of the FDCPA which may entitle you to up to $1,000 in statutory damages plus attorney fees and costs.
 
When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you're rights have been violated, please contact us for a free case review.

While the statute of limitations can act as a defense in some circumstances, consumers consistently misunderstand what this means and how it can be used to their benefit.  Thus, to properly explain how to use the statute of limitations as a defense, it is important to understand what a statute of limitations actually is. 

A statute of limitations is a time limit one has to bring a lawsuit against another for a perceived wrong committed.  For instance, if one were hurt in a car accident, there is a limit of time they have to actually file the lawsuit against that person they claim was at fault.   Once that time passes, the injured party no longer has a right to sue for their loss.  That time limit starts to run from the date of the accident.  Thus, if there is a two (2) year statute of limitations for personal injuries, a lawsuit would have to be filed within two (2) years from the date of the accident, or the right to recover from that accident may be forever lost. 

In the context of a creditor pursuing a debtor, it is a little different than a car accident.  The questions to be answered are from when do we start counting, and how long is the statute of limitations?  Each state handles this differently.  In most instances, the kind of case the creditor brings against the debtor is a "breach of contract" case.   Therefore, one must first determine how long the statute of limitations is in their state, or the state where the contract was first entered into, for a breach of contract claim.  Our website provides you the answers.  See our Statutes of Limitations page to determine how long a creditor has to sue.    There is a broad range from state to state from as few as four (4) years to as many as ten (10) years. 

However, once we know how long the statute of limitations is, we still have to determine from when do we count.   As the case is typically called a breach of contract case, the date to start counting is the date of the alleged breach of  the contract - or the date the contract is broken.  A debtor has breached (or broken) a contract when they have discontinued to keep up their end of the deal of paying for the credit.   However, creditors don't necessarily consider it a breach just because one or two months have passed without payment.  Creditors consider it a breach when an account is charged off -that is, the creditor has, after 180 days of non-payment, determined that the debtor is not paying at all, and has charged off the account as a bad debt.   Therefore, the time the creditor has to sue you runs however many years the statute of limitations allows from the date of the charge off (or 180 days from the last payment).  Still, a consumer must check their state laws as agreeing to make a payment at some point after the charge off does in many states re-start the statute of limitations period and allow the creditor all that time anew to sue. 

A consumer that has not been sued or sought after for a debt for several years since the last payment was made, may have a defense to the debt because of the statute of limitations.   Turning back to the consumer that is suffering from an ongoing wage garnishment, the statute of limitations may not present a defense.  A lawsuit may take years for a suing creditor to locate the debtor, locate where they work, and serve the garnishment papers.  For the statute of limitations, all the creditor had to do was get the lawsuit filed on time.  If a debtor finds him or herself being garnished, and it has been a long time since they heard about the debt, they must first find out when the creditor actually filed this original lawsuit in the first place. 

There are other protections to the consumer that is being surprised by the garnishment.  If the consumer was never notified of a lawsuit from being filed and can prove that they were never served properly with the lawsuit, the consumer can go to court to vacate the judgment and can present a statute of limitations defense. 

The statute of limitations can be a powerful defense for consumers if properly understood.   If you are facing collection of an account that has not been paid in several years, CONTACT US for a free case review.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.

This family came to SmithMarco with their problem. Through discovery and investigation, we determined that the dealership actually sold the vehicle twice before selling it to our client. The dealership was well aware of the accident damage through its own service records as they had performed their own repairs on the vehicle, and their own expert noticed the accident damage.  The lawyers at SmithMarco proved that the dealership engaged in illegal selling practices that included keeping this important information from their sales people. The sales people are not given any access to important records within the possession of the dealership that reflect the true history of the vehicle. Instead, the sales people are advised to rely on an Autocheck report - a database that provides vehicle histories - which the dealership personnel themselves acknowledged offered incomplete information.

In court, Infiniti of Orland Park tried to claim that they didn't know about the damage to the vehicle; when confronted with the records that they had in their possession, they tried to argue that the salesman was a rogue employee. Those arguments did not work. After a week long trial ending on October 5, 2012, after deliberating for only one hour, a jury found for the consumers and awarded $5,000 in actual damages for the diminished value of the vehicle and $30,000 in punitive damages.  If you, or anyone you know, questions a used car purchase, contact our office and let the attorneys at SmithMarco help you.

The holiday season brings with it a sea of offers of credit, lay-away, prepaid cash card deals and a host of other buying opportunities. It also brings with it the threat of identity theft by those who want to take advantage of holiday shopping season and may not have the means of their own. With just two months to go before the season gets into full swing, this is a good time to be proactive and check into your credit.

The reason for this is simple, if you find problems on your credit (such as outdated items or items that do not belong to you) you need to take action. When you find an inaccuracy on your credit report, you have the right to issue a dispute to the credit reporting agency that is reporting that inaccuracy and force that agency to conduct an investigation. The law allows that agency up to 30 days to complete its investigation. As such, any disputes that go out now will be answered in mid-November. Any escalated investigations, where the consumer is asked to provide additional support for their claims, will not be resolved until December - when it may be too late. Therefore, now is the time to start.

Every person is entitled to one free credit report from each of the three major credit reporting agencies once per every 12 month period. If you have not received your free report, you can go to www.annualcreditreport.com and make a request. You will be required to answer some security questions, and, if the bureaus find concern with the security, they may require you to mail in your request.

Another way you can get a free credit report is if you were recently denied credit. When you receive a letter from a creditor that advises you that you have been turned down, the credit bureau which was used to deny that application has to provide you a report free of charge. All that is needed is a simple letter requesting the report along with a copy of the letter denying credit.

It is so important that you look at your credit report once a year. If you are unable to get a free copy for whatever reason, it may be well worth the cost of paying for it if it saves you the hassle and embarrassment of not having enough buying power two months from now.

SmithMarco, P.C. helps consumers defend lawsuits and settle their debts in a way that is fair and economical.  Contact us for a free case review.

When is it legal for a collector to contact an employer?  It is legal to contact an employer in order to effectuate a post judgment remedy.  In other words, when a collector has a judgment against you, they are entitled to contact the employer in order to set up a garnishment.  That is all they can do, however.  This is not an opportunity for the collector to harass or bother the employer or discuss your matter in great detail.  Simply, they need to find out where to send the garnishment notice. 

A collector can also contact any third party, which may include an employer.  However, this too is a limited communication.   A collector can only contact a third party in order to seek your location information,  and in doing so, must specifically state just that - that they are looking for location information - and nothing more.  Furthermore, they can only contact that third party one time.  So if a collector is contacting an employer, and that collector does not have a judgment against you, and that collector does not just ask for where you are located, then that collector runs afoul of the Fair Debt Collection Practices Act.

Also, when contacting an employer or other third party, the collector cannot even identify the company name unless that third party specifically requests it.  Thus, when collectors send a fax to the company fax machine, chances are they are violating the FDCPA.  Typically, the fax cover page is going to have the collector's name and contact information.  If it was never asked for, then the fax will violate the law.  Moreover, if the fax makes any mention of the debt that is allegedly owed, that too violates the FDCPA. 

In sum, a collector's ability to contact your employer is extremely limited.   Many of the contacts do violate the FDCPA.  If you are dealing with a harassing collector who is contacting, or threatening to contact, your employer, contact us for a free case review.

Regardless of where the car is purchased, there are many things that you must beware of, such as when someone says they ran the car through its 50 to 150 point inspection. All that means is that they had a check list and they can assure you the car has tires and the breaks are not falling off. The best used car will have one owner that has taken care of it and who has an accident free history. It is not uncommon to find that many used cars have been subject to prior accidents, use as a rental car, had its odometer rolled back, and even have been deemed to be a lemon. Here are some helpful tips when looking for and buying a used car.

• The Carfax

We have all seen the commercials with the little fox popping up between a salesman and the customer telling the dealer to show the carfax. Carfax  is the leading database on automotive histories and provides the history of the vehicle including accident damage, number of owners, mileage markings at various stages, then a vehicle has been declared a total loss, as well as service and maintenance history. Most dealerships have access to Carfax and use it regularly themselves. Request to see the Carfax report, as any retail seller will have it. If a dealer doesn't willingly supply you with the report you may want to look at another car or dealer. If you do your homework on- line before going to the dealer or you are purchasing from an individual that may not have a report for you, you can access it for about $30 by going to the website ; all you need to do is have the Vehicle Identification Number (VIN) .

• Warranty History Report

Running a Warranty History Report is second nature to an authorized dealer. The report will list all repairs performed on a vehicle throughout the warranty period. It is best to buy a used car from the dealer that sells the same brand of new cars so if you are buying a used Chevy, try to buy it from a Chevrolet new car dealership. If you are buying a Chevy from a Toyota dealer -you can take the VIN from one dealer and walk into another. Ask the service department for a warranty history report which will show all the repairs the vehicle had under warranty.

• Bring a Mechanic

It doesn't hurt to take your own mechanic with you when examining a used car. Have them in to look at the car, drive it, check under the hood and look underneath the carriage. A well trained mechanic can tell if the vehicle has been properly maintained or if it has been damaged in an accident, and they will tell you what you can expect in the way of repairs.

• Longer Test Drive

Over the years we have heard from clients that the used car worked just fine in the test drive and then, the moment it was taken off the lot, it broke down. How can it work fine right up to the point it is sold, then the problems come in a flurry? This can be a crazy coincidence, or it can be because people take short test drives to see if the car works. Drive the car for 3-5 miles before agreeing to buy it and, if you are a highway driver, take it on the highway. You may want to go back a few times to test drive it. If it breaks down or has any problems at all in the test drive - then chances are you will have problems all the way through. Do not be fooled by the salesman's promise that it is a minor problem that they will have fixed right up for free. This problem is a foreshadowing of things to come.

• When Buying from an Individual, Ask Questions

Who did you buy this car from? How long did you have it? Have you had to repair it while you have had it? Has the car been in an accident before? These are all important questions to ask. Make the owner give you answers. While some of the consumer fraud and deceptive business practices statutes will allow a consumer to make a claim for concealed or omitted facts, most require that there be an actual misrepresentation of facts. It is not always enough that the dealer or owner failed to tell you something; instead they have to go so far as to lie to you in order for you to make a claim if you find yourself on the bad end of a sale.

• Read All Paperwork

Whether the car you buy is new or used, there is a plethora of papers that have to be signed. There is no better time for a dealer to slip something past you, such as a disclosure that says "the dealer has made no representations regarding the history of this vehicle." If you followed the advice above, and got answers to your questions, the dealer did indeed make representations about the vehicle, and it would be foolish to sign or initial something saying he did not.

While going into a car sale armed with information is never fool proof, by following the above tips and tricks you can greatly reduce the risk of buying a vehicle that is going to break down on you. Get the Carfax and a Warranty History report, bring a mechanic, take a long test drive, ask the dealer questions, and read your paperwork. Then, you can take comfort that you have reduced the risk on your used car purchase. Remember, used cars aren't as cheap as they were 10 to 15 years ago. Make sure you love what you are buying and that you won't have to put additional money into it soon.

SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you want a free case review, please contact us.

1. Threats of Wage Garnishment:  With the exception of a federally funded student loan, in order to garnish one's wages, a creditor or debt collector must have a judgment against the consumer.  That is, they must file a lawsuit, serve the lawsuit upon the consumer, bring the matter to court and win the case.  Unfortunately this last step is often too easy as consumers tend to not properly respond to a summons.  Regardless, a garnishment is not always inevitable just because a lawsuit is filed.  Still, many collectors like to tell consumers that if they do not pay the debt, they will garnish wages. 

In our opinion, this threat can violate the FDCPA in most instances.  First, if the collector does not own the debt, then they can't sue anybody for it.  So to say they would be garnishing wages, when they can't even sue, would be misleading.  Second, even if they did own the debt, to simply say they would garnish wages is misleading when they have not taken any of the steps necessary to have any right to garnish wages such as file a lawsuit.  A debt collector making this comment about garnishing wages should be careful to qualify it by mentioning that they can file a lawsuit, and if they win, intend on garnishing wages.  But to make it sound so immediate and inevitable would be misleading. 
 
2. Failing to Disclose the Communication is Coming from a Debt Collector:  When a debt collector communicates with a debtor, no matter how or when, it must disclose that the call is coming from a debt collector.  This section of the FDCPA was likely brought upon to avoid any tricks in the communication - so that the consumer receiving the call knows the purpose of the call and is not misled by the caller.  So often collectors leave messages for consumers to call a number back about "an important business matter" or some other emergency.  The collector will not advise that the call is coming from a debt collector.   In addition, when they call and the consumer answers, the collector must make that disclosure.  It must be on every letter, e-mail, or fax.  The failure to do so violates the Fair Debt Collection Practices Act. 
 
3. Communicating the Debt to Third Parties:  Often times, collectors call third parties looking for the consumer.  They may call parents, siblings, old roommates or ex-spouses.   It is not always done with a sinister intent.  Often times, the debt was created when the consumer lived at a different address.  Thus, a collector with very little information about the person they were looking for, may call these other places.  When a debt collector calls a third party, literally several sections of the FDCPA come into play.  However, for this article, we are focusing on the one violation that appears most popular - leaving a message on a voicemail or answering machine. 
 
Unless the collector is calling a personal cell phone, there is a danger that once the message is left, another person will hear.  Common household answering machines can be played by any member of the family.  A family often shares a voicemail account.  People have roommates.  As stated in #2 above, when the collector communicates with the consumer, the collector must advise that the call is coming from a debt collector and he or she  is attempting to collect a debt.  Therefore, if a collector leaves a message that complies with the law, the collector is disclosing the debt, and if anyone besides that particular debtor hears that message, the FDCPA has been violated. 
 

While there are sure fire ways to prevent themselves from making this error, debt collectors seem to continue to commit this violation. 
 
Debt collectors have run over consumers and committed acts violating the FDCPA regardless of their knowledge and training over these laws.  The above are just a few of those we see as the most popular violates lately.  Are you being contacted by a debt collector? SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Contact us for a free case review.

Pursuant to the Fair Credit Reporting Act, only companies that have received an application for, or entered into an agreement with the consumer for, the providing of credit, insurance or employment may access the consumer's credit report.  However, debt collectors in many instances pull the credit report instead of the creditor.  This is because the debt collector, assigned the obligation of collecting the debt, stands in the shoes of the creditor.  If the creditor had the right to pull the credit report, then so does the collector. 

However, what happens when the original creditor could not pull the credit report?  When a person goes to a hospital or doctor's office, the medical facility is not extending credit, employment or insurance.  The medical facility has no right to access a consumer's credit file to determine the ability to pay the bill.   Therefore, the collector that is assigned to collect on the account has no right to access the credit report of the consumer.  The same holds true for collectors of parking tickets, municipal fines, or back taxes.  If a collector that is chasing one of those debt gains access to the consumer's credit report, there is likely a violation of the Fair Credit Reporting Act. 

This brings up another issue.  The collector is allowed to pull the credit report for a "legitimate business purpose" and that phrase has been widely accepted to mean that the review of the credit report is to determine the ability of the consumer to pay the debt.  We have had calls from consumers in the past complaining about the way in which the credit report was being used.  While often times the collector would sit on the phone with the consumer and point out the availability of room on a credit card to make a payment, we hear complaints that the collectors have gotten outright abusive.  Some have reported that the collector used the opportunity to mock or harass the consumer about their credit report - sort of picking on the consumer for their economic shortcomings.  There have been complaints that the collectors would sit and laugh at the consumer over the phone and belittle them for their lack of credit and any hope in the future.  Is this a legitimate business purpose? 

We have had some success  in making the argument that the credit report was not pulled for a legitimate business purpose, but being pulled for the purpose of harassment and abuse.  Obtaining access to a credit report for the purpose of harassment and abuse is not a permissible purpose to access a consumer's credit report. 

Are collectors pulling your credit report?  Are you concerned that this access to your private information is unpermitted by law?   SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  Contact us for a free case review.

The consumer, wanting to pay off the debt, attempts to make a request for  a payment plan so that it can be paid off in increments.  The collector refuses, and tells the consumer that they have to pay the debt in full.  After some haggling, perhaps the consumer gets the collector to budge and accept a payment plan.  However, the plan is wholly unreasonable and calls for the consumer to come up with two or three times the amount they can afford.  Still the consumer works at trying to lower the payment amount. 

The collector then states: "If you do not pay this in full, we are going to report that you are refusing to pay."  This threat conjures up an impression to the consumer that something bad is going to happen.  Many people believe that  this means that the file is getting turned over to a lawyer who will sue because the consumer refuses to pay.  From our experience, this threat has been quite bothersome to consumers who claim that they never refused to pay, and don't want to be treated as if they refuse (because they believe the consequences to be worse).  They just want to pay it off. 

This threat may violate the Fair Debt Collection Practices Act, 15 U.S.C. §1692e, and subsection 1692e(8) in particular.  This particular section states that a collector cannot report or threaten to report, to any person any credit information that is false or that should be known to be false.  By threatening to communicate to a creditor that the consumer refuses to pay, the debt collector is threatening to report something false.  It is credit information - a persons ability or propensity to pay debts, and it is false, as the consumer has made their desire to pay clear.  Moreover, though many collectors believe otherwise, nothing in this section states that the credit information has to be reported to a credit reporting agency.  Rather, it just states that the false information needs to be reported to any "person".    Therefore, the threat to report that a consumer refuses to pay a debt when the consumer has done no such thing presents a potential case under the FDCPA. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

The Fair Debt Collection Practices Act provides the starting point of an answer - and the protection a consumer needs as well.  Under the FDCPA, it is improper for any collector (and this includes attorneys collecting a debt) to charge any money beyond the principal of the debt UNLESS (1) it is permitted by law, or (2) it is permitted by the underlying agreement. 

Attorney Fees Permitted by Law:  The "American Rule" is a common adage in law that provides that each party to a lawsuit has to pay their own way and their own attorneys unless a particular statute provides that attorneys fees are to be paid by the losing party.  The FDCPA itself is one of those statutes - that provides that the Defendant will have to pay the Plaintiff's fees in the event of a Plaintiff victory.  However, in the common breach of contract case (which is what a collection suit is) in most states there is no law providing for the payment of fees.  As such, in an overwhelming majority of cases, the collector cannot collect his fees from the debtor in a lawsuit because of a law. 

Attorney Fees Permitted by the Underlying Agreement:  If at the time the consumer enters into the agreement with the creditor, the agreement itself provides that the consumer will have to pay attorneys fees if the creditor is forced to pursue the debt in collections, then the collector will be allowed to.  Thus, it is most important to keep the agreement you have with the creditor in case they attempt to sue and collect fees.  If there is nothing on the agreement that states that the creditor can collect fees, then the lawyer has no right to ask for them.  Moreover, to attempt to collect such fees would violate the FDCPA as it is a violation to misrepresent the amount that is owed or to collect money incidental to the agreement. 

However, the inquiry does not necessarily end there.  A careful reading of the agreement is in order.  Many times the agreement will say that fees can be collected in the event a lawsuit is filed.  Often times, a lawyer is given the debt to collect, but they only write letters or make phone calls - no lawsuit is filed. Yet, in those letters, they seek to collect attorneys fees.  If the contract itself says that fees can be collected in the event of a lawsuit, then a lawyer cannot collect fees just because they were hired.  They can collect fees only if they file the lawsuit.  As such, the attempt to collect fees for simply writing letters may run afoul of the FDCPA. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

If the caller is a debt collector, has the debt collector violated the Fair Debt Collection Practices Act?  The FDCPA requires that a collector make meaningful disclosure of their identity when calling a debtor (15 USC §1692d(6)) and that whenever communicating with a debtor, must disclose that the call is coming from a debt collector ( 15 USC §1692e(11)).  Therefore, on its face, this appears to be a violation of these two sections of the FDCPA.  After all, they called, they spoke to the debtor, and they failed to identify who they are or that they were a debt collector.  

However, the collector responds by arguing that they have to make sure they do not divulge any information about the debt to a third party, and therefore, could not disclose anything the person they called until that person clearly identifies themselves.  Seems like a reasonable argument, doesn't it? 

No, it doesn't.   The Fair Debt Collection Practices Act is a "strict liability" statute.  That means that if it is violated, then the collector is guilty whether they meant to do it or it was an accident.  There is but one and only one defense that a collector has in a case under the FDCPA - the bona fide error defense.  In this defense, the collector can avoid liability under the FDCPA if they can prove that they had reasonable procedures in place to prevent this particular violation from happening, and despite having these procedures in place, unintentionally violated the Act. 

Thus, the question:  What procedure was in place to prevent them from failing to disclose that they were a debt collector and their identity?  Assuming the procedure is that the collector must first determine if they are calling the correct person and then make the disclosure, and by determining whether they are calling the right person, they asked simple identifying questions.   Is this a reasonable procedure?  Should they expect that they can call people on the phone, not identify who they are, but demand that they be provided personal information such as a social security number and date of birth?  Would any normal person getting a call from an unidentified stranger willingly divulge their social security number and date of birth?  We sincerely hope not!   Most people in their right mind are not going to give this information out on the phone to a complete stranger.  Thus, this procedure is not a reasonable one. 

Surely the collector then argues that they are caught between a rock and a hard place:  How can they disclose who they are and that they are calling about a debt if they don't know who they are calling?  Good question, and we can answer it with a question:  How did you get the number you called in the first place?  Surely, the number came from somewhere.  Usually the original creditor has provided personal and contact information of the consumer.  Perhaps the collector did other work to skip trace to locate the consumer.  Regardless, the collector was given a name and a number of the debtor, they called the number and asked for the debtor, and the debtor said it was him.  At this point, there is ample information before the collector to assume he is talking to the right person, and therefore should make the disclosures.

Even if the collector is concerned that they are not talking to the right person, they can still identify the name of their company.  15 USC 1692b(1) provides that if a collector is making a call to a third party, and that person asks for the name of the company, the collector can give them that information.  Moreover, the debt collector can confirm an address, or ask if there is a Jr. or Sr. of the same name so as not to confuse father/son.  They can find other, less intrusive ways to assure this is the right person.  However, to demand, without any identity, that a social security number and date of birth to be given - and expect compliance - is hardly a reasonable procedure designed to prevent them from violating the FDCPA. 

It seems that what the collector argues in this scenario is that they have procedures that are in place to make sure they do not make improper third party disclosures - and thus a reasonable procedure to prevent this type of violation of the FDCPA.  However, in implementing these procedures, they are causing other aspects of the FDCPA to be violated - namely the failure to disclose the callers identity and purpose.   A collector cannot pick and choose which sections of the FDCPA are better to violate.  They cannot violate any section.  As such, a procedure that is put in place to prevent once section from being violated that causes another section  to be violated, is not a reasonable procedure. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

When I first heard the recording of a collector making contact with a relative of the consumer and tell that person they were listed as a reference, I did not think too much of it.  But on further review, this comment, as innocuous as it may sound, actually can be a violation of the FDCPA. 

We start with the premise that contacting third parties in order to seek location information of the consumer is perfectly legal provided that (1) there is no disclosure to this third party that the consumer owes a debt, and (2) that there be only one call to that third party - unless it is believed that the information given was incorrect.  These provisions are found at 15 U.S.C. §1692b(2) and (3).  Surely, telling someone they are a reference does not disclose the debt.   However, looking at the paragraph that comes before these two, 15 U.S.C.§1692b(1) sheds light on the problem with this statement. 

1692b(1) of the FDCPA states that when a debt collector communicates "with any person other than the consumer for the purpose of acquiring location information about the consumer shall.. state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer. "  When it comes to interpreting a statute, each and every word is to be considered and given its plain meaning.  This section obligates the collector to state that he is confirming location information, and limits the collector from being able to even say who he is working for.  It would seem that Congress, in enacting this legislation, was concerned with collectors going beyond simply trying to find out how to reach the consumer. 

By telling the person called that they were listed as a reference, many people would immediately become curious.  Reference for what?  It may cause the person called to inquire into what they were listed as a reference.  Of course, the collector being unable to make that disclosure only causes more curiosity by telling that person that they cannot say.   The possibilities of what can happen at this point increase.  Aside from causing the person called to pry into the collector, it can cause that person called to call the consumer.  It may cause some confrontation between consumer and alleged reference whereby the person listed as a reference may not appreciate getting these calls. 

Moreover, what if that person is not listed as a reference?  Then the collector made a misrepresentation.  It is rare that a collector actually has all information from a collector as to who were the references for a particular loan.  Chances are more likely that the collector received the information by performing a skip trace.  As such, telling that person that they are a reference, when they are not, which may cause that person to take exception to being a reference and have a confrontation with the consumer is the kind of thing the FDCPA seeks to avoid.  Of great importance to Congress in the FDCPA is the privacy rights of individuals who may owe debts.  This calling tactic is clearly one that potentially breaches those rights. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

1. The Right to View Your Own Credit Report:  The Fair Credit Reporting Act provides that each person is entitled to one free credit report for each twelve (12) month period.  The bureaus must provide you a report free at least once and it can be obtained by visiting www.annualcreditreport.com.  However, that is not the only time they have to give you your report for free.  In addition, any time adverse action is taken on your credit report, that is, you are denied credit, you are entitled to a free report from that credit bureau whose report was used to make the decision.  All the consumer needs to do is mail in a request along with the letter that provided the denial.   

However, free credit reports are not the limit of a consumer's ability to get their report.  They are entitled to it any time they ask for it (though they will have to pay the regular price for one).  The Fair Credit Reporting Act provides that upon request, a credit bureau must provide you a report, and that report must contain all the information that they similarly provide to creditors or potential creditors about you. 
 
2. The Right to Keep Your Credit Report Private:   A credit report is private.  It contains very personal information about a person's financial status and reputation among their creditors.  Because of the sensitivity of this information, Congress, in enacting the Fair Credit Reporting Act, placed limitations on who may obtain a copy of a consumer's credit file.  The people or companies that can gain access to a consumer's credit report essentially fall into 3 groups, potential and current creditors, potential and current employers, and potential and current insurers.   If any person or company gains access to a consumer's credit report for any other reason, this may violate the FCRA.
 
3. The Right to Dispute Information on a Credit Report:  When a consumer reviews a credit report and finds inaccuracies or errors, they are entitled to have that matter promptly reviewed.  The FCRA provides that when a consumer finds an error on their credit report, they can dispute that error directly to the credit bureaus.  When a credit bureau receives a consumer dispute, the credit bureau must (1) conduct an investigation and report back the results of that investigation within 30 days of receiving the dispute, (2) notify the creditor reporting the information within five (5) days of receiving the dispute about the consumer's claims (which in turn kicks off that creditor's obligation to independently investigate the error as well), and (3) provide the creditor all relevant information given by the consumer to the credit bureau, so that the creditor's investigation can be complete and meaningful.  
 
4. Employment Background Checks are Included Under the FCRA:  A report that is protected under the FCRA is one that reports information about a consumer's ability to pay debts, but also about their character, reputation and history.  Background checks that include matters such as arrest records are indeed such a report.  Therefore, a background check performed when a consumer is seeking employment is covered under the FCRA.  That is, a consumer has the right to obtain a report and dispute the contents of it.  A failure to remove negative, inaccurate information can result in civil liability to the company that prepared the report.
 
5. Negative Information Has a Shelf Life:  Any negative information on a credit report such as a missed payment or a charged off account can only be reported for seven (7) years from the date of such negative activity.   Any public record, such as a judgment, bankruptcy or a crime, can only be reported for ten (10) years from the date of the occurrence.  This means that a negative mark cannot stay on forever.  If a single payment is missed, then that report of missed payment can only be on the credit report for 7 years since the missed payment.  If the creditor chooses not to report that missed payment for 3 years after the payment is missed, and then decides to report the missed payment, they only have 4 more years left of reporting it.  If an account is charged off, then the account must be removed from the credit report 7 years after the charge off date regardless of when the creditor first decides to report the charge off.   This assures that negative information will not follow someone around forever.
 
SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.
 
 

Buffalo, NY is home to a great number of debt collection agencies, such that many attorneys in the area of Fair Debt Collection Practices Act would deem it the collection capital of the United States.  As such, the setting seems appropriate.  However, the main character is said to find work in a collection firm that focuses on payday loans that are rather old.  The accounts - or what is termed as "paper" in the industry - are at the bottom rung of collection accounts that are deemed recoverable.  This will be contrasted with a more esteemed collection agency that has higher quality "paper" - or better accounts that they are collecting. 

It is said that the series is based upon an essay that was published in the New Yorker in 2010 called "Pay Up" which took a close up look at the life of an ex-con that owns a debt collection agency in Buffalo that woks similar "paper" as the main character in the film.  The project is still in development with no kind of production schedule set.   Therefore, it will be quite a while until there is anything more to report. 

However, SmithMarco will be ready!  We pledge to be avid followers of this show if it makes it on the air.  We vow to provide weekly blogs with each episode, comparing and contrasting some of the themes of the show with reality as we know it.  We will note similarities with the experiences of our own clients, and offer our opinions on how consumers should handle the situations in which characters of the show find themselves. 

We also would like to be depicted in the show for the champions of consumers rights that we are.  Therefore, should Brad Pitt play the part of the debt collector, we think it only appropriate that Smith & Marco are portrayed by Clooney and Jackman - it would surely be an accurate portrayal!

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

In this case, the consumer claimed that a car was purchased by his soon to be ex-wife through the use of fraud. 
Prior to the divorce, the wife went to the dealership and purchased the vehicle in the consumer's name.  Subsequently they divorced, and the ex-wife did not keep up payments, causing the bank to begin reporting negatively on the consumer's credit report.  When the consumer began disputing the item on his credit report, the bank refused to make changes, citing the reason as the consumer's failure to send in a police report regarding the purported forgery.

The court stated that it was not necessary to turn over a police report to trigger USAA's investigation obligations under the FCRA.  The court ruled that USAA could not put additional conditions on its duty to investigate. The fact that USAA required a fraud affidavit or police report before it would conduct a further inquiry did not absolve it of its responsibility to conduct a reasonable investigation under the law. The text of 15 U.S.C. § 1681s-2 does not allow furnishers to require independent confirmation of materials contained in a CRA notice. In other words, the obligation to conduct a reasonable investigation does not hinge on whether the consumer provides information required by the bank's internal policies.

Under the Fair Credit Reporting Act, a furnisher of information to a credit bureau , such as a creditor, has obligations to conduct an investigation into the accuracy of its credit reporting that is kicked off by the consumer sending that dispute directly to the credit bureaus.  Once the credit bureaus receive a dispute from a consumer, the credit bureaus are to notify the creditor of the dispute, and the creditor is to conduct an investigation.  Upon receipt of that dispute, the creditor must:

1.  Conduct an investigation that is more than a "cursory review".

2.  Review all of the information provided by the credit bureau to the creditor.

3.  Report the results of their investigation.

4.  Correct inaccurate information or update the information reported so that it is accurate and not misleading. This corrected information must also be provided to the other credit bureaus regardless of whether they had any involvement or notice of this investigation.

5.  Modify, delete or permanently block the reporting the information it finds upon investigation to be inaccurate or  incomplete.

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

However, credit reporting is not just limited to those three main bureaus, Trans Union, Equifax and Experian, and our credit histories.  Background checks performed by potential employers are also reports that are covered under the FCRA.  The FCRA covers all "consumer reports" and the term "consumer report" is defined as any communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used for the purpose of serving as a factor in establishing the consumer's eligibility for credit, insurance or employment purposes.  Therefore, background checks for employment or tenant leasing are covered.

Recently, the Consumer Financial Protection Bureau (CFPB) released a bulletin to all nationwide specialty consumer reporting agencies reminding them of their obligations under the FCRA.   Richard Corday, the CFPB Director, stated in a press release, "Nationwide specialty consumer reporting agencies can have great influence over a consumer's tenancy, insurance premiums, or even employment. Today, the CFPB is reminding these companies that they must follow the law and provide consumers with easy access to their free annual report. If we have reason to believe that companies are not following the law, we will take action."   The bulletin warns that these companies are responsible for streamlining the process of allowing consumers to obtain their reports, and cautions those that have not set up a process that complies to take immediate steps to do so. 

The CFPB bulletin presents further clarity on how these companies will be treated when it comes to Fair Credit Reporting Act Compliance.  These companies will be treated no differently than the 3 main credit bureaus, and will have to provide disclosures to consumers on a yearly basis. 

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

There are companies such as Chex Systems for checking account applications,  DataX for subprime consumer lending, CoreLogic Teletrack for payday loans, and PRBC/Microbilt for employment  reports.  According to The Consumer Finance Protection Bureau (CFBP) there are approximately 400 different credit reporting agencies in the United States.  The CFPB has compiled a list of about 40 different ones, along with the area of specialty.  We have added this page to our website for your ease and convenience.  Click here.

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

The calls can be rather annoying.  Sometimes they use up your minutes on a limited plan;  sometimes the call is for another person, but without a human being on the phone, you cannot tell someone to quit calling your number.  In the worst case scenario, the calls are incessant - non-stop and daily.  It can be quite an irritation to have a cell phone ring on an almost daily basis, only to answer andfind a machine on the other end. 

There is help in the law.  The TCPA - Telephone Consumer Protection Act (sometimes referred to as the Telecommunications Consumer Protection Act) is a statute that provides a remedy for consumers facing this issue.  Under this law, it is a violation to call a persons cellular phone:

• with an autodialing system and,
• without the express permission of the owner of that phone to make automated calls to the phone.
   

There are only a few simple issues here:  whether the calls went to a cell phone; whether the call was made by an autodialing system; and whether the consumer provided express authorization to call that number.  The issue of whether the calls are made by an autodialing system are usually easy to answer.  If when answering the phone, or if the call goes to voicemail, and the other end is not a human being, but a recording. 

The more complicated issue is that of express authorization to call the number.  It is in this area where most cases are fought.  Express authorization means that the person who owns the phone must actually give the permission openly to the caller.  This can be found mostly where the consumer provided the phone number in an application for credit, and now the collector of the account is calling. 

If a company violates the TCPA, they are liable for $500 for each call made.  A court may find that the conduct is willful or wanton, and may increase the amount per call to up to $1,500.  Therefore, a person getting a very high volume of calls, perhaps daily, can obtain a great monetary reward for their aggravation.

If you are receiving calls to your cell phone from an automated, or "Robo" dialer, CONTACT US for a free case review. SmithMarco, P.C. has been protecting consumer rights since 2005.

Its not a scam, but a rather weak way that collection agencies are trying to make themselves more efficient, by reducing costs and increasing the amount of calls they make.  This phone call is likely coming from an auto-dialer.  The auto dialers are known for making far more contacts with consumers than the collectors would make if they had to manually dial each debtor they call.  More calls = more chances of money for them.

If the consumer doesn't answer the phone, many of these collectors go ahead and risk violating the Fair Debt Collection Practices Act by having that machine that called leave a message.  So what happens if you stay on line for the whole message?  Nothing except whoever did owe that debt just had it improperly revealed to a third party in violation of the Fair Debt Collection Practices Act.  But if you don't know the person, it sure does nothing for you to know that they are the owners of a right to a lawsuit against the collector. 

The best thing to do in that situation is to let the message play out, and follow the options, if any, that allow you to speak to a representative.  Tell that representative that they have the wrong number, and whoever it is they are looking for cannot be found at this number.  They may call yet again, and you may have to remind them again.   However, if this gets persistent, then the Fair Debt Collection Practices Act does provide you a remedy.  It is a violation of the FDCPA to continue to cause a phone to ring with the intent to harass, and it is a violation of the FDCPA to engage in any conduct, the natural consequence is to harass.  When a consumer has provided warning to the collector that the number they are calling is incorrect, and the collector persists on calling, then one can conclude that the natural consequence of the continued calls is to be harassing. 

In addition, if the calls are coming into a cell phone, the Telephone Consumer Protection Act comes into play.  Under that law, if the collector makes multiple calls to a cell phone with an auto-dialer but without the express permission of the consumer to use the cell phone.  Obviously, if the account does not belong to the person receiving the robo-calls, then the caller does not have express permission to call that phone. 

When you're being pursued by debt collectors, you have rights, and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you are receiving calls to your cell phone from an automated, or "Robo" dialer, CONTACT US for a free case review.

The first factor to consider is the overall quantity of calls.  Is it one a day or a week?  Or, is it multiple calls throughout the day.  Are they close in time to each other or spread out.  Many courts that have tackled this issue have found that one or even two calls in a day are not enough to be deemed harassment.  Collectors claim that they have no intent on harassing - they just are trying to catch the consumer at home.  However, when the calls turn into a high volume, it does not matter so much what the collector intends.  In certain situations, the multitude of calls can be of such frequency that it should reasonably be expected to be harassing, and therefore is deemed harassment under the FDCPA. 

However, collectors can still get away with multiple calls in a single day.  If the collector calls once in the morning, once mid-day, and once in the evening, they can make a strong argument that there was no harassment as they spaced out the calls to try to see if the consumer was home at different times of the day.  What if the calls all came within one hour though?   That would indeed be considered more towards harassing conduct.  

Another factor that may be considered in determining whether the volume of calls is harassment would be whether there had been any previous responses to the collector calls.  If the collector makes multiple calls, but never gets an answer, then it may be harder to prove the calls are an intent to harass than if the calls are answered.  If the consumer speaks to the collector and tells the collector that they do not have any current income, that they don't expect income, that they are disabled, or even outright refuses to pay the debt, then the continued calls to the consumer after that may become harassing.  After all, if a collector is advised on one day that the consumer is unemployed and does not have any money to pay the debt, then 3 calls the next day were entirely unnecessary and can be construed as nothing more than an attempt to annoy or unnerve the consumer. 

A factor may also be whether the collector is calling the correct number.  Collection agencies often find themselves dialing the wrong number - either because it's the old phone of the debtor, or they are calling their old residence.   Surely the collectors argue that they do not intend to harass the non-debtor.  However, how many times has the collector been told that the person they are looking for cannot be found at this number?   In a situation where a collector is calling a non-debtor multiple times, and has been warned that they are calling the wrong number, even the person at the called number who is not a debtor has rights under the FDCPA.

When you're being pursued by debt collectors, you have rights, and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

Repossessors and process servers who are doing their jobs are not covered by the Fair Debt Collection Practices Act.   The FDCPA defines a " debt collector" as any person who uses any instrumentality of interstate commerce to collect debts owed or asserted to be owed to another.  The term " debts" however is defined under the FDCPA as any obligation or alleged obligation to pay money. 

A repossessor falls outside of that definition because they are not collecting a debt - or better stated, they are not collecting money.  They are merely taking back what has not been paid for, and not asking for money.  Therefore, they are not collecting a debt.  As such, the person coming to repossess a vehicle need not comply with the FDCPA.  There may be state laws that govern their conduct that should be reviewed.  There is one way that a repossessor becomes a debt collector.  That is when they provide you the opportunity to avoid the repossession by paying some or all of the debt.  One simple move like suggesting that the consumer make a payment to them to halt the repossession is all it takes and the repo man is suddenly a debt collector that must meet all the requirements of the FDCPA. 

Process servers, though they may make comments about collecting a debt, are not collectors under the law.  Their immunity from this law comes from the language of the act defining debt collectors -which specifically exclude them.  The FDCPA states that the term debt collector does not include "any person while serving or  attempting to serve legal process on any person in connection with the judicial enforcement of any debt."  15 USC 1692a(6)(D). 

These are a few of the thorns in the sides of consumers who have difficulty paying their debts.  Some of these companies have the ability to get away with conduct that would otherwise violate the law.

When you're being pursued by debt collectors, you have rights, and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

There have been very few decisions on this section of the Fair Debt Collection Practices Act, and recently, the 11th Circuit Court of Appeals provided insight on how this section is properly applied.  In the case of Harris v. Liberty Community Management, the plaintiffs were all people who were behind on their condo association dues.  Liberty had been hired by the condo association to generally manage the association's affairs.  A management agreement was signed between Liberty and the association that provided that Liberty act as the "sole and exclusive agent" of the association and perform tasks such as regular maintenance of the community's common areas, negotiate contracts in the name of the Association for electricity, gas, fuel, oil, and water; purchase and maintain property insurance, investigate all accidents and claims; and make all necessary reports to insurance companies.  Liberty also prepares a budget for the Association, maintains the books and records of the Association, keeps the bank accounts of the Association, makes deposits of all monies collected on behalf of the Association and draws checks in the Association's name.  Additionally, Liberty prepared the monthly financial report showing  budget and income and expenditures, received and reconciled the monthly bank statements for the Association, and assisted the Association with its yearly tax filings. 

One of Liberty's specific duties involves the collection of assessments as they become payable from homeowners.  The plaintiffs in the case were delinquent in the payment of the assessments, and when the collection tactics of Liberty came into question, the plaintiff's sued under the Fair Debt Collection Practices Act.   The trial court dismissed the case under the FDCPA against the defendant holding that Liberty was not a debt collector under 15 USC §1692a(6)(F)(i).  The appellate court agreed.

The appellate court explained that first, the management company owed a fiduciary obligation to the association.   This was because, as the general agent engaged in the numerous responsibilities, under Georgia law, a confidential relationship exists "where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc."   Moreover, the collection of the unpaid assessments was "incidental" to Liberty's "bona fide fiduciary obligation."   The appellate court applied the Oxford English Dictionary definition of "incidental" which means "occurring as something casual or of secondary importance."   Pointing out that Liberty did much more, and items of greater importance, than collecting unpaid assessments, the court held that this collection was incidental to the fiduciary relationship between the management company and the condo association. 

Here, the appellate court provided a good explanation, having a good set of facts to work with, of how the exemption found in §1692a(6)(F)(i) operates.  Companies, such as real estate management companies, that act as a general agent and that perform duties which elevate them to a confidential or fiduciary relationship will avoid liability under the FDCPA if part of their obligation is the collection of fees or rents.

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

While  discharging a student loan may be a very difficult proposition, it is not impossible, and the loans are not ineligible for discharge.  According to the bankruptcy code, a student loan debt is considered non-dischargeable unless excepting it from discharge "would impose undue hardship on the debtor and the debtor's dependents."  11 U.S.C. §523(a)(8).  Naturally, there are a multitude of consumers out there that can fairly claim that paying off their student loans is causing an undue hardship on them and their families.   However, the test for what makes an "undue hardship" is where it gets difficult.  There are several factors that are considered:

Debtor must show that he or she cannot maintain, based on current income and expenses, a minimal standard of living for the debtor and the debtor's dependents if forced to repay the loan. 
 
Elements of a minimal standard of living consist of decent shelter and utilities, food and personal products, maintenance of vehicles, health insurance, and the ability to pay for medical or dental services should the need arise.  A person should be entitled to these basic necessities.  If repaying the student loans prevents the debtor from being able to have these, then this would weigh in favor of discharge.  But that is not all.
 
Debtor must show additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the loans.
 
In this, the debtor must essentially show that they are hopeless, and this is certain for the foreseeable future.  Factors to consider are whether the debtor's earning capacity has peaked, or their earning capacity has diminished on a somewhat permanent basis, age of children, age of the debtor, and evidence of mental or physical impairments.  Moreover, the length of time considered in the future is not perpetual, its for a significant portion of the original repayment period. 
 
Debtor must show he or she have made good faith efforts to repay the loans.
 
In this, there is not too much guidance.  Essentially, a debtor has to show that the obligation has not been avoided altogether - that some efforts have been made in the past to keep current with the obligation, but that the debtor is no longer able to keep paying and maintain a minimal standard of living. 
 
There are other hardship standards that have been considered by bankruptcy courts.  For instance, one court used a "totality of circumstances" test wherein it considered (1) the debtor's past, current, and reasonably reliable future financial resources; (2) the debtor's and his dependent's reasonably necessary living expenses; and (3) any other relevant facts and circumstances. 

Thus, discharging student loans can be done.  The courts can be very tough on debtors who try, but it is possible.  Therefore, don't believe the debt collectors of these loans when they tell you the debt can never go away. 

SmithMarco, P.C. has been protecting consumer rights since 2005. Contact Us for a free case review. 

The first instance in which a creditor may be sued under the FDCPA is when it fails to identify itself as an original creditor and instead claims to be a separate collection agency. By example, if a debt is owed to Creditor A and Creditor A calls daily at your place of employment despite your repeated requests to cease all contact at your office, and when calling refers to itself with a different company name, it may be held accountable for its actions under 15 U.S.C. §1692c(a)(3).

The second instance in which an original creditor may be liable under the FDCPA is when it uses a "flat rating company" to collect a debt. A "flat rating company" is one that is hired by the original creditor for a nominal amount to draft and mail initial collection letters on the original creditor's behalf.  If the debtor is misled to believe that the flat rating company is collecting on behalf of the original creditor, the debtor may hold both the original creditor and the flat rating company accountable for any violations that may occur under the FDCPA. The creditor, though they may be using another company to send its letters, if they are actually controlling the collection process while using this other company, they can be held liable.

The third and final situation in which an original creditor may be liable under the FDCPA is under state laws. Several states have enacted their own laws governing the conduct of debt collection whether it is by a collection agency or an original creditor. To find out if your state has laws which protect you from the conduct of an original creditor check your state's statutes.

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

For the FDCPA to apply, the debt must be a consumer debt.  This means personal, family and household debts are covered, but business debts are not included.  Collection agencies may contact a debtor by phone, letter, e-mail, and even in person. The collector cannot contact you at an inconvenient time or place.  A consumer can identify to the collector what times or places are considered inconvenient to them.  However, the FDCPA deems anytime before 8:00 a.m. and after 9:00 p.m. to be inconvenient.  A collector may even contact you at work to attempt to collect a debt unless the collector is informed that you are prohibited from receiving those calls during your employment hours.

As a debtor you are afforded the right to request the collection agency cease all contact with you. This is commonly referred to as a "Cease and Desist" letter.  In addition, you can write a letter to the collector simply informing them that you refuse to pay this debt. Upon receipt of one of these letters the collector must cease all contact with you except to inform you that it will no longer contact you or that it plans to take further action against you, i.e. file suit in a court of law.

In an effort to locate the debtor, a collection agency may contact a third party to find out location information, such as where you live, your phone number and/or place of employment. A collector may not contact a third party on more than one occasion and may not disclose to the third party the nature of its call or that the debtor owes any money.

After the initial verbal communication with a debtor, the collector must send a collection letter ("dunning letter") within five days of that first verbal contact. In that letter, the collector must include the name of the creditor, the amount of the debt owed, a statement that this communication is an attempt to collect a debt and any information obtained will be used for that purpose. Lastly, the letter must include what is referred to as "validation notice". "Validation notice" is a statement notifying the debtor that he or she has the right to dispute the debt in writing within 30 days of receipt of the collection letter and may request validation of the debt. Upon receipt of the request for validation, the collector must cease all collection activities until it provides the requested proof of debt, such a copy of the services rendered, a credit card contract, etc.

The FDCPA protects you from harassment by a collector. Harassment includes but is not limited to, use of threats or violence, use of obscene or profane language, or continuous phone calls. Collection agencies may also not make false or misleading statements, such as inferring you have committed a crime, misrepresenting the amount of the debt you owe, threatening to file suit when there is no such intention, or threatening arrest, garnishment or imprisonment. Collection agencies may also not engage in unfair practices when attempting to collect a debt including but not limited to collecting an amount greater than you owe, or solicit a post-dated check and deposit it before the date on the check.

If you feel your rights have been violated by a collector, you have a right to file suit under the FDCPA within one year from the date the violation occurred. If you are successful, you may be entitled to damages plus an additional amount up to $1,000. Furthermore, both court costs and attorney's fees may be covered under the statute.

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

In keeping with this great tradition, here is a compiled list that consumers in the market place should all resolve to do this year:

1.  I will read the contract before I sign.   Whether we are purchasing a car or obtaining a new line of credit, merely looking at the long and drawn out agreement is often too intimidating.  The initial reaction is to just trust the vendor and sign the document.  Then when there is a problem down the road, who can we blame when we never read the terms we were getting ourselves into.  Don't let them hurry you through the buying process.  Take your time and read the document. 

2.  I will not give my credit card or bank account information out over the phone to people who are threatening me with legal action unless and until they provide me proof that they are a legitimate company pursuing a legitimate debt.   There is an awfully large amount of fraud in the collection business, most notably when it comes to payday loans.  Many of these so-called companies do not take the time to properly register as a corporation.  This is mostly because they are bent on performing illegal acts and do not want to get caught when they do.  From now on, no matter what the threat, demand that these companies prove who they are or they will not get our money.
 
3.  I will not ignore a lawsuit that gets served on me and allow a judgment to be entered against me without a fight.  Another intimidating event is the receipt of a complaint and summons by a sheriff.   Even worse is having to go to court and step in front of a judge - this is a very uncomfortable environment for a non-lawyer.  However, the failure to properly respond subjects us to a far worse fate - a judgment.  With a judgment comes the right to garnish wages or take assets.  When receiving a lawsuit, we are going to overcome that fear, call a lawyer for help, and make sure they don't walk right over us to get their judgment.
 
4.  I will make use of the law that allows me a free credit report once a year and review my credit report for errors.  The laws are here to help us.  The Fair Credit Reporting Act provides that each of us are entitled to one free credit report from each of the three major credit reporting agencies.  There is no good reason not to take advantage of this.   We can see what people are reporting about us and not have to pay for it.
 
5.  I will not be afraid of the phone when it rings, and I will answer it and find out who is calling.  Many consumers call us to complain that they are getting repeated calls and want it to stop.  Who's calling?  They don't know...they are not answering the phone because they do not recognize the number.  Moreover, the consumer does not have an answer for the debt collector.  There is no reason to fear a debt collector.  All they can do is talk.  They cannot reach through the phone and hurt you.  They have to comply with all the laws surrounding debt collection.  If they are going to be held accountable, we have to know who they are.  Therefore, we are going to answer the phone and find out what they want from us.  Who knows, maybe they will even let us try to settle the debt.

When you're being pursued by debt collectors, have credit reporting issues,  or are being sued for a debt, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you're rights have been violated, please contact us for a free case review.

Once the debt is in the hands of the collector you are entitled to certain rights and need to make sure you are equipped with the necessary information to protect yourself. One of the most important rights you are afforded as a debtor is the right to dispute the debt and request validation from the collector. When the collector sends you its initial letter, before agreeing to make a payment, demand that the collector "validate" the debt. After requesting this validation, the debtor may not contact you and must cease all collection efforts until it provides you with the requested validation.

In your request for validation, you should demand written proof that the collection agency has the right to collect the debt from you, ask for a copy of the original agreement from the creditor, account statements from the original creditor explaining the original balance of the debt and the amount you currently owe and how it was calculated. A collection agency that receives a timely demand for validation must discontinue all collection efforts until that validation is provided.

Below is a sample Request for Validation letter that can be sent to a collection agency. Make sure it is specifically tailored to your situation, i.e. "I dispute the amount of the debt," "I dispute that I owe this debt as it was paid in full," "I dispute that this debt belongs to me;" and it is best to send it certified mail so that you have proof it was received by the agency.

Request for Validation of Debt

Your Name
Your Address
City, State, Zip

Date

Name of the Collection Agency
Address
City, State, Zip

Re: Acct #XXXXX

To Whom It May Concern:　　　

This will serve as your legal notice under the federal Fair Debt Collection Practices Act (FDCPA), to cease all communication with me in regard to the debt referenced above.Do not contact me or any third parties regarding this debt via the telephone.

Furthermore, I formally dispute the validity of this debt.  Please provide me with documentation that supports why you believe this debt belongs to me, and why you believe I owe this amount.  Please send me copies of the original application for this account, any signatures associated with this account, any bills associated with this account, etc.

You are also notified that should any adverse information be placed against my credit reports appropriate actions will be taken under the federal Fair Credit Reporting Act (FCRA).

Thank you for your attention to this matter.

Sincerely,

Your Name

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you're rights have been violated, please contact us for a free case review.

A question you may be asking yourself is who can view your credit report.  Your credit report may only be viewed by a party with a "Permissible Purpose".  Permissible purposes include employment opportunities, for credit applications, by court order or at your personal request.

As a consumer, you are entitled to view your credit report at any time and may actually request a free copy of your report once a year. You may also go to the three major credit bureaus' websites and follow the directions for your free yearly report.  The websites for the three bureaus are:  Trans Union; Experian; and Equifax.   

Once you have reviewed your report, you may find mistakes reported that are detrimental to your credit standing.  In the event the credit agencies are reporting inaccurate information, under the FCRA you have the right to dispute and request an investigation into the reporting.  This is best done by letter sent certified mail to the credit bureaus and if possible should include any documents that support your position.  Upon receipt, the bureaus have 30 days to investigate your dispute and get back to you with the results.  The credit reporting agencies also have an automated dispute option, either on line or by phone, but a thorough dispute in writing is the strongest option and will best protect you in the event you need to file suit.      

If you find accurate negative information on your report, you should review the dates of reporting to make sure no account or trade line is reported for longer than the legally allotted amount of time.  Collection accounts, charged off accounts or other adverse account information may not be reported for longer than seven years from the date of last activity.  Public records such as judgments or bankruptcy, and tax liens; criminal history, such as an arrest record; and student loans may only be reported for ten years.

In the event disputed inaccurate information remains on your report, you have the right to file suit against both the credit bureau(s) and the furnisher of the information.  Under the FCRA, you are entitled to statutory damages of up to $1,000 or actual damages that you can show you suffered as a result of the inaccurate reporting.  Furthermore, the FCRA requires the Defendant(s) pay(s) for your attorneys' fees.  In conclusion, the FCRA is a law enacted to protect you, the consumer.  It is important to know your rights so that you are in a position to protect your credit standing.

When you have problems with your credit report, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you're rights have been violated, please contact us for a free case review.

This recent amendment requires more restrictive compliance when compiling information on a prospective or existing employee by requiring the use of a federally mandated form and following a four-step process.  Below is a list of the four steps as well as an explanation of each step that an employer must follow to comply with the FCRA.

Step One:
Employers must provide "certification" to the Credit Reporting Agencies

A credit reporting agency ("CRA") may provide an employer with a consumer report for employment purposes after the employer provides the proper certification.  Certification is proof that the employer notified the prospective or existing employee that it requested a consumer report for employment purposes in writing.  The employer, in response, must obtain written authorization from the prospective or existing employee to access the report for this permissible purpose.  Should the report contain information that negatively affects its employment decision, the employer must comply with the conditions for taking adverse action as prescribed by the FCRA.  Lastly, once a consumer report is distributed to a potential or current employer, the CRA must also provide the employer with copy of the laws mandating the use of consumer reports and the obligations of users pursuant to the FCRA.

Step Two:
Employers must notify the employee that the information obtained in the consumer disclosure may be used in making its employment decision

The employer must obtain written permission from the potential or current employee in a direct manner.  Furthermore, if an employer requests an "investigative consumer reports" (i.e., a consumer disclosure where information regarding a person's character, reputation and personal characteristics is obtained through interview) on potential or current employees it must also inform the employee that such a report may be obtained. Notice must be provided to the employee in writing and sent by mail or personally delivered and is time sensitive.  The notice must also include a statement of the employee's rights pursuant to the FCRA as well as the employee's right to request the nature and purpose of the employer's request.   

Step Three:
Employers must provide the employee with proper notice should the information obtained in the consumer report adversely affect its employment decision

After accessing a consumer report, if based on the information reported, an employer makes a decision either not to hire a prospective employee or to terminate the employment of an existing employee, the FCRA requires the employer to provide the employee with a copy of the report and a copy of the employee's rights under the FCRA before it takes action.  This notice allows the employee to exercise his or her rights under the FCRA and dispute any potentially inaccurate negative information with the CRAs that may have been the cause of not being hired or losing existing employment.   

Step Four:
Employers must inform the potential or current employee of its intent not to hire or to terminate employment either verbally or in writing

After making the decision not to hire or to terminate employment based on information obtained in a consumer report the employer must provide the name and address of the CRA who provided the report, a statement that it was the employer and not the CRA that made the employment decision and an explanation that the employee has the right to dispute information contained in the report and request a copy of a report free of charge within 60 days. 

When you have problems with your credit report, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you're rights have been violated, please contact us for a free case review.

If you answer the phone and hear a prerecorded message in lieu of an actual person; if you receive a prerecorded message on your answering machine or voicemail; or if you hear a long pause asking you to hold the line prior to speaking with a live person, these are considered robo-calls….all of which may be considered illegal.   

The TCPA makes it illegal for collection agencies to place robo-calls to a consumer's cell phone without prior consent.  However, consumers must be aware of the exceptions to this rule, prior to filing suit and alleging the calling company violated the law.  First, if when signing an application for credit, you provide your cell phone number, it is often assumed that you have provided written consent to contact you at that number.  Second, if your cell phone number is the only number you have the calling company again may argue that it has permission to call you at that number.  And the third situation that may protect a collection agency is if the credit application you signed had language expressly stating you give permission to be contacted at your cellular number. Now more than ever, creditors are including this language in applications as the use of cell phones continues to grow exponentially.   

Should you receive robo-calls to your cell phone without your consent, it may likely be in violation of the TCPA and you may file suit in Federal Court entitling you to damages starting at $500 and as high as $1500 per telephone call if you are able to prove the calls were placed willfully.

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you're rights have been violated, please contact us for a free case review.

Credit scores are based on your credit history over seven to ten year periods.  Most negative information remains on your credit file for either 7 years or 10 years depending on the type of account.  The older the information, the less it affects your score.  So after filing bankruptcy, new accounts in good standing will gradually help you rebuild your credit and improve your score.

The reality is, if bankruptcy is a potential option for you, your credit score has likely seen better days.  Often times, prior to filing bankruptcy, consumers try to work with debt settlement companies or credit repair companies to assist paying off their debts.  While these types of companies may be a good choice for you as far as getting your debts paid off, they have no control over how creditors report to credit bureaus.  So chances are, your credit is being damaged while in a debt settlement program.        

If after reviewing your credit report, you find that while you don't have any collection accounts, the majority of your accounts are past due and/or have late payments and your balances exceed your credit limits, bankruptcy may actually help your credit score.  Filing for bankruptcy gives you a clean slate bringing all of your accounts included in the filing to a zero balance.  This counterbalances the negative impact of the filing of bankruptcy in the first place. Once filing is complete, your creditors can no longer report negative information on your old delinquent accounts, driving up your score.  And as previously explained, scoring models will improve your score when you open new accounts that will remain in good standing by paying on time every month.  Make sure to review your credit report for accurate reporting of your accounts.  Accounts included in bankruptcy should be reported as paid and closed with a zero balance.  

After filing for bankruptcy, obtaining credit can often be difficult and overwhelming.  Make sure you do not fall prey to excess interest rates on credit card offers and bank loans.  Try to choose secured credit cards with more reasonable interest rates and credit building loans that you can afford so you are able to maintain your financial responsibility and increase your credit score.

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

The average consumer falls somewhere between 600 and 750 and anything above 700 is considered "good" credit while scores below 600 suggest you may be a credit risk and have poor credit management skills.  If your score falls above 720 you will likely receive the best interest rate when applying for credit while on the contrary scores below 600 will likely award you a credit denial or an excessive interest rate. 

The most significant factor in decreasing your credit score is late payments or your payment history.  In order of importance, when calculating your credit score credit bureaus consider payment history, amount owed, length of your positive and/negative credit history, new credit and the type of credit used.  These factors are combined and weighted to determine your score.  An excellent score is somewhere between 750 and 850; a good score between 700 and 749; fair between 625 and 699; poor between 550 and 624; and a bad score is 549 and below.  As a rule of thumb a credit score of 700 or higher will generally earn you any credit you apply for, but may not get you the best interest rate available.  

Unlike your credit report, which you are entitled to one free copy annually, usually you have to purchase your credit score.  You may purchase your score either through myfico or by visiting the three major credit bureaus websites.  Having a good credit score can be the difference between saving thousands of dollars instead of making heightened interest payments that you would not have had to pay otherwise.  If you plan on making a big purchase in the upcoming future, start now in increasing your credit score so you are able to obtain the lowest interest rates available.  Tips on increasing your credit score are making sure you pay all of your bills on time, making sure your report reflects only accurate information about you, not applying for unnecessary credit and not using up all of your credit limits.       

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases.  If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.
 

In plain language, the statute states that a collection account can remain on your credit file for 7 years from the date the account was charged off or for 7 and a half years from the date the first delinquency occurred.  Nowhere in the Act does it state that a debt can be re-aged after a lump sum payment is made, payment in full or sale to another collection agency allowing the account to be reported for an additional 7 years and thus further damaging your score. 

This law requiring derogatory items be removed from your credit report after seven years is designed to aid consumers to recover from past credit mistakes and help rebuild your credit score.  An important factor to consider and clearly understand when discussing this 7 year clock is the difference between the statute of limitations and permissible length of time for reporting a delinquent account.

Statute of limitations ("SOL") are state laws that set a defined length of time under which you may be sued or file suit.  These lengths of times vary depending on what state you live in and the type of debt you are being sued for.  For a complete list of the statutes by state visit our website.  Remember, once the statute of limitations has passed it does not mean a collector cannot sue you, it simply provides you with an absolute defense to the lawsuit.  In other words, if a lawsuit is received and the statute of limitations may have passed, action must be taken to defend the case.

Under the FCRA 15 U.S.C. §1681c an account in collection can appear on a consumer's credit report for 7 and a half years from the date of first delinquency on the account.  Subsequent activity, for example payment on the account, is irrelevant to the seven year period.  It may, however, restart the statute of limitations in your state. There are however a few exceptions to this rule: bankruptcy may be reported for ten years from the date of the final order; tax liens may be reported for 7 years from the date of payment; federal student loans can be reported indefinitely or for as long as they are delinquent.

It is important to understand that because a negative item is removed from your report or may never have been reported in the first place it does not mean that the statute of limitations for filing suit and obtaining a judgment has passed.  The FCRA and statute of limitations laws are independent of one another.   In conclusion, the short and simple answer to the question is paying off your debts will not negatively affect your credit score by re-starting the reporting clock.  You can only help your score and clean up your report by paying off your debts.  The 7 year reporting rule is only applicable to negative items on your credit report and not to accounts in good standing.  Positive accounts can remain on your credit file for an indefinite amount of time even after they have been closed and paid in full. 

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases.  If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

Specifically, in Glazer the appellate panel stated that law firms initiating a foreclosure must comply with the provisions of the FDCPA.  In Glazer, Plaintiff inherited a property and subsequently fell behind on numerous mortgage payments.  Chase Home Finance, LLC ("Chase"), the servicer of the loan but not the original owner of the debt, hired a law firm to commence a foreclosure action on its behalf.  Under the FDCPA, in response to the collection efforts, the consumer requested verification of the debt and proof and that Chase was the rightful owner of the mortgage.  When Chase did not comply with the consumer's request, he filed suit under the FDCPA seeking damages.

On appeal to the Sixth Circuit, the Court held that while Chase was not considered a debt collector under the law, the law firm attempting to collect the debt was, and therefore must comply with the request for verification before proceeding with the foreclosure, which is considered a collection activity.   In its decision the Court held,

 … mortgage foreclosure is debt collection under the Act.  Lawyers who meet the general
 definition of a "debt collector" must comply with the FDCPA when engaged in mortgage
 foreclosure. And a lawyer can satisfy that definition if his principal business purpose is
 mortgage foreclosure or if he "regularly" performs this function. In this case, the district
 court held that [the law firm engaged in collecting on Chase's behalf] was not engaged
 in debt collection when it sought to foreclose on the property. That decision was erroneous,
 and the judgment must be reversed.

In its opinion, the Sixth Circuit refused to follow the numerous cases finding attorneys who handle mortgage foreclosure actions not subject to the rules of the FDCPA and not considered collectors under the definition of the statute.  The FDCPA defines "debt collector" as a person who regularly collects or attempts to collect consumer debts.  In the Sixth Circuit's interpretation of the definition of "debt collector", it found that any action in which the sole purpose is to collect payment of a debt must be considered collection activity and therefore attorney's initiating foreclosure actions must follow the laws of the FDCPA. 

The Sixth Circuit is not alone in its opinion holding attorneys involved in mortgage foreclosure actions subject to the laws of the FDCPA.  Other circuits including the 2nd, 3rd, 4th and 11th also require compliance under the FDCPA. Should you feel your involvement with a law firm attempting to collect payment on a mortgage foreclosure has failed to meet the requirements under the FDCPA contact SmithMarco, P.C. for a free consultation. 

Is it permissible under the  Fair Debt Collections Practices Act ("FDCPA") for a debt collector to report charged-off debts to a consumer reporting agency during the term of the 30-day validation period detailed in Section 1692g?  A debt collector may accurately report a debt to a consumer reporting agency within the thirty day validation period.  Under the FDCPA, you are allowed to request validation of this debt and the collection agency must show proof that the debt is valid and that you owe the debt.  During this time the agency must mark the account as disputed to the credit reporting agencies and if unable to validate must actually order a deletion of the account on your report. 

When a collection agency receives a debt to collect from the original creditor, it has the right to report that debt to the credit bureaus.  Reporting the debt on your credit report is viewed as collection activity and the reporting may have a significant effect on your credit score.  In some cases, you can prevent a collection agency from reporting your debt to a credit reporting agency.  The first way to avoid the collector from reporting is by agreeing to pay the debt.  As previously explained debt collectors use the threat of reporting the account on your report as a tool to negotiate payment.  By agreeing to pay you may avoid damage to your credit, but you must ensure, usually in writing, that the collector will hold up its end of the bargain and not report. 

If you do not owe the debt, either because it does not belong to you or because it is inaccurate, you may dispute the debt in writing pursuant to the FDCPA.  If the dispute is within the original 30 days period as described above, then until the collection agency provides you with the requested information, it cannot conduct any form of collection activity-- including reporting the debt to the credit bureaus.  If the 30 day period has passed, you can still write a dispute to the collector, and the collector must report that the account is disputed on your credit report.

The final situation in which a collector cannot report a debt on your report is when it is past the time allowable for reporting the debt under the Fair Credit Reporting Act (FCRA).  The "FCRA" states that delinquent accounts can appear on your credit report for 7 to 7 and a half years from the date you defaulted on the original account.  If a collection agency threatens to report a debt on your credit report beyond the legally permissible amount of time, you may have a claim under the FCRA for violating your rights.

Should you feel a collection agency has erroneous reported an account on your credit file contact SmithMarco, P.C. for a  free consultation. 

Zombie debt is often so old that the original creditor has completely written it off and ceased all collection efforts.  Collection agencies will buy this debt and then begin collection by manipulating you into making payment, thus reviving the debt, and in some circumstances making the statute of limitations null and void.  If you believe you are the victim of a zombie debt collection tactic, the first step in avoiding the scam is to not acknowledge the debt.  Do not let the debt collector know the debt may belong to you and do not make any agreement to pay.  Make sure to ask for proof of the debt in writing including the amount of the debt, the name of the original creditor and any additional proof that it is your obligation, like a credit card agreement signed by you or an original contract-but stand your ground in stating you do not accept responsibility for the debt until it is proven yours. 

When dealing with debt collectors attempting to collect zombie debt make sure not to fall into their trap.  Collectors will often threaten to report a debt on your credit report if you don't pay, which they cannot usually do.  This type of debt is often well past the allowable time for reporting on your credit file under the Fair Credit Reporting Act.  Alternately, collection agencies will promise to delete an entry on your report if payment is made, when in fact the account was not reported in the first place.  Lastly, it is important to view your credit report to make sure the collector does not try to report the debt by re-aging the account to make the debt "viable" or within the statute of limitations or report the debt as new.  Either way, should an account appear on your credit file as a collection effort, make sure to dispute the information with the credit reporting agencies.

Should you feel a collection agency is coming after you trying to collect "zombie debt" contact SmithMarco P.C. for a completely free consultation.   

Fair Credit Reporting Act ("FCRA")

The root of this duty to provide notice of a CRA's intent to re-insert previously deleted information comes from the 1983 case Morris v. Credit Bureau of Cincinnati, 563 F. Supp. 962 (S.D. Ohio 1983).  In Morris, the plaintiff married a woman who had filed for bankruptcy prior to the marriage.  At a later date, when the plaintiff filed a credit application, he was denied based on a bankruptcy reporting on his credit file.  After reviewing his report, the plaintiff discovered his wife's premarital accounts were reporting on his credit file, despite the fact they were not his and he had never filed for bankruptcy.  The plaintiff disputed the account information and it was deleted from his report pursuant to the FCRA.  Sometime later, when plaintiff applied for credit he was again denied based on the fact the bankruptcy notation was in fact still attached to his file under a name associated with the plaintiff, but one he did not use.  The plaintiff filed suit pursuant to the FCRA against Credit Bureau of Cincinnati based on the fact it failed to follow all reasonable procedures to assure maximum possible accuracy of the information when it failed to delete the bankruptcy notation in its entirety after already agreeing to its deletion.  The plaintiff argued the defendant needed to provide him with notice of its intent to re-report the bankruptcy and success in making this argument.   

In 1993 the 5th Circuit followed the Morris opinion and even went so far to argue re-insertion of previous information may be considered an automatic violation.  In Stevenson v. TRW, Inc., the court held "[a]llowing inaccurate information back onto a credit report after deleting it because it is inaccurate is negligent" 987 F.2d 288, and this negligence is considered a violation of 15 U.S.C. 1681e(b). 

Contrary to that opinion, in 2005, a Wisconsin court decided to buck the trend of the automatic violation standard and held in Anderson v. Trans Union that re-insertion may not necessarily rise to a level of negligent conduct in violation of 15 USC §1681e(b).   In Anderson the plaintiff notified his bank that his street name had changed and when the bank employee reported the information on his account the information mistakenly began reporting the plaintiff as deceased.  367 F. Supp. 2d 1225 (W.D. Wisc. 2005).  The plaintiff notified the defendant of the inaccuracy and the credit reporting agency used a procedure it had in place to delete the deceased notation on the account. However, later when the bank changed the credit card from Mastercard to Visa the account again reported the deceased notation causing the plaintiff to be denied credit at a later date.  When the plaintiff filed suit alleging a violation of 15 U.S.C. 1681e(b), the court held that,  "[th]e Act does not impose such requirements [as automatic violation for re-insertion].  Its goal is to have consumer reports that are fair and accurate; it does not demand perfection from an industry that deals in billions of pieces of information." 367 F. Supp. 2d 1225 (W.D. Wisc. 2005). 

The lesson to be learned from this dichotomy of opinions is don't assume an automatic violation has occurred in the event of re-insertion and protect yourself pursuant to the FCRA by making a clear dispute to the credit reporting agencies in writing with supporting documents.  If you believe you have a situation in which your rights have been violation pursuant to the Fair Credit Reporting Act, contact SmithMarco P.C. for a free case review. 

Garnishments often occur when a debtor least expects it and often times when the debtor received no notice until the money has already been taken.  While a garnishment cannot usually be stopped, if the collector has not followed the letter of the law, there may be relief.    

The first step to take in determining whether a garnishment is proper is to make sure the collector filed suit and properly obtained a judgment against you.  Often times, consumers state they had no idea a lawsuit was ever filed.  A common occurrence in the area of collections is where a collector files a lawsuit, but fails to properly serve the debtor so he is unable to represent himself in court.   When a lawsuit is filed, the Plaintiff must serve the lawsuit and a summons upon the debtor.  Often times, the summons is served at a wrong address.  Then the collector will appear in court and obtain a default judgment against you for your failure to appear.  Make sure you have a real judgment against you by contacting the local courthouse and then make sure you were properly served.   You are entitled to review the entire court file as it is a matter of public record. 

If the debt does not belong to you, a court of law is your opportunity to explain yourself.  On the contrary, if the debt is yours, court is a great place to open the dialogue for negotiation.  You can discuss a payment plan or lump sum payment as a settlement in lieu of garnishment where they take a specified amount of your paycheck.  If you were not served and had no notice of the lawsuit prior to the garnishment, you must file a motion to vacate the judgment for failure to properly serve you with notice of the lawsuit. 
   
In the event the garnishment is valid, the collector is not entitled to your entire paycheck.  The amount allowed to be taken is determined by your state and there are certain exemptions including the receipt of public assistance.  If you qualify for an exemption, you must put the collector on notice by completing a formal exemption notice and filing it with the court.  If you are not fully exempt, do not forget there are still limits to what can be taken from your paycheck.  Check your state law to determine the permissible amount of money a collector may withdraw. 

Filing for bankruptcy is another way to stop a garnishment.  Filing for either Chapter 7 or 13 bankruptcy will effectively cease any wage garnishment and force the collector to refund any money that was garnished within 90 days preceding the filing.  To make sure filing bankruptcy is the right option for you, make sure to consult a bankruptcy attorney. 

SmithMarco has been protecting consumer rights since 2005.  If you feel you have been improperly garnished or your rights have been violated under the Fair Debt Collection Practices Act contact us for a free case review. 

It is important to understand that no one can legally remove accurate information from your report.  A credit repair company takes your money to dispute negative, yet accurate information-you can do that all on your own.  Lying about an account that you simply want removed from your credit report will likely harm your credibility when it comes time to dispute negative inaccurate information.  Instead of hiring a company, you can request an investigation, at no charge, of information on your file that should either not be reported at all or may be reporting inaccurately.

By law you are entitled to one free credit report a year from each of the three major credit reporting agencies, Equifax, Experian and Trans Union, and you are also entitled to a free credit report after receiving a credit denial.  You must request a copy of your report from the credit reporting agency within 60 days of the denial to take advantage of the free report.  You may also be entitled to one free copy of your report if you are unemployed and plan to look for new employment within 60 days.    

Once you have obtained a copy of your reporting make sure to review the information and mark the items you feel are inaccurate.  Once you have made a list of this information, draft a letter to the credit reporting agency, (NOT the creditor with which you have an account) explaining in detail why the information is inaccurate and why it should be removed and/or updated.  Again make sure to only tell the truth in your explanation and provide supporting documents that may help the credit reporting agency conduct an investigation into your request.  We suggest you send the letter certified mail, "return receipt requested", so that you have proof it was received.  Make sure to also save a copy of everything for your files.  You may need the information down the line if you get involved in lawsuit. 
Click here for a sample dispute letter.

Upon receipt of your dispute, the credit reporting agencies must investigate within 30 days.  Once the investigation is complete, the agency must get back to you with the results.  If an item is changed or deleted, the credit reporting agency cannot put the information back on your report unless the information provider verified that it was in fact accurate and complete.  If an investigation does not resolve your dispute you are entitled to ask that a statement be included on your report about the accuracy of the information.  

After disputing with the credit reporting agencies, it cannot hurt to write a letter to the creditors as well.  Again, try to include supporting documents and any information you may have that will aid in their investigation and hopefully allow them to change their reporting.

Lastly, in the event you have accurate negative information on your report, the only thing that can make it fall of your report is time.  Most negative information can only remain on your report for between 7 and 10 years and the older the accounts are the less the affect your score.  Spend a little time reviewing your report and you will find you are capable of repairing your credit all on your own. 

SmithMarco, P.C. has been protecting consumer rights since 2005.  If you have a credit reporting questions and would like a free consultation, please contact us today. 

As a result of the FDCPA being written in the 1970s and the Telephone Consumer Protection Act ("TCPA") written in the 1990s, this is a difficult question to answer.  Since these statutes were enacted, technology has blurred the lines of acceptable conduct pursuant to the FDCPA.  Most consumers use cell phones and have access to the internet and social media sites at all times.  Unfortunately, the laws have not expanded yet to take into account this growing use of technology. 

The Fair Trade Commission, ("FTC") however, believes that the laws governing the FDCPA and TCPA are written in a way that the consumer is protected under the statute regardless of the medium a collection agency uses to collect a debt.  In other words, a collector must still follow the letter of the law in its collection efforts even if it uses Facebook or other social media sites to reach out to the debtor.  For example, a collector who contacts a debtor on one of these sites must identify itself when making a friend request; a collector cannot contact the debtor's "friends" or attempt to make "mutual friends"; a collector cannot post anything about the debtor on the debtor's message board.  The FTC also says it is keeping a close eye on the growing trend of social media and will continue to monitor it as it has been over the past several years.     
   
While there have been cases in which collection agencies contacted debtors directly through Facebook, regulators and trade groups collectively agree that communicating with debtors on these social sites is not okay.  However using these sites as a means of gathering information about a debtor as a collection tactic is allowed.  Consumers use Facebook and other social media sites to post personal information about themselves, so collectors feel that information should be "fair game".
 
lf you feel your rights have been violated by a collector through misuse of a social media site or in any way pursuant to the FDCPA contact SmithMarco P.C. for a free case review.  SmithMarco has been protecting consumer rights since 2005.



1.  Find out who is calling you. 

• Pick up the phone and ask the caller for the name of the caller and their location.
• Write down the number on your caller identification.  Either call back the number or Google it. 
• Look in your mail.  Are you getting collection notices? 
• Read your credit report.  Do you have any outstanding debt or debt that is in default?  Your credit report must report correctly.  The Fair Credit Reporting Act requires those that report to report with "maximum possible accuracy." If they fail to do so, and fail to take notice of your complaint into the inaccuracy of their reporting, you may be able to dispute the credit report error and recover your losses.
• If you view your report and find errors, this needs to be disputed immediately and in a specific fashion.  See our detailed instructions on our website or call an attorney today at no cost.  
   

2.  Keep of log of the calls and save all voicemail messages.  For a collector to be violating your rights under the Fair Debt Collection Practices Act (FDCPA), it is necessary to know what the collector is doing and/or saying.  Some violations include:

• Call before 8:00 a.m. or after 9:00 p.m. or at any time or that they are given notice that it is inconvenient to call .
• Tell other people (friends, family, co-workers) about the fact that a debt is owed.
• Call the consumer's place of employment if they have been advised that calls cannot be accepted at work. 
• Use any profane language or any language that is harassing and abusive 
• Engage in any conduct, the natural consequence of which is to harass, abuse or oppress. 
• Make any misrepresentations of fact, such as how much is owed, or certain actions they may take to force payment
• Threaten arrest or criminal prosecution 
• Send false information to the credit bureaus 
• Cause a telephone to ring an unreasonable amount of times 
    

3.  Be careful about scam collection agencies.  It is easy for bogus collection companies to get information about a consumer and past debts from various sources.  If you get contacted by a collector who threatens arrest or demands payments ASAP to avoid arrest, demand that the collector send you proof of the debt.  Never provide personal or financial information over the phone.  This includes your social security number and your bank account information. 

4.  Contact an attorney at SmithMarco for a free case review.  Our law firm has been protecting consumers since 2005.   If you have a case under the FDCPA,  we can help you earn up to $1000 for violations.  Also, we can help answer questions about collections, disputing debts and other consumer-related issues.  Call to speak with an attorney or check out our website for useful information.  Our goal is to protect consumer rights.  Don' t delay, contact us today! 

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For your vehicle to be considered a "lemon", the vehicle must be under its original manufacture's warranty.  This warranty period varies depending on the manufacturer of the vehicle.   General Motors (Chevrolet, Buick, Pontiac), Ford and Chrysler for example have manufacturer vehicle warranties of 3 years/$36,000 miles.   Lincoln, on the other hand, has a longer original warranty period of 4years/50,0000. This means for a Chevy to be a lemon, the vehicle must be no older than 3 years or less than 36,000 miles, whichever comes first.   If you purchased an extended  warranty or a "certified" used vehicle, your warranty period is not extended for the purposes of the lemon law claim.  If you are unsure of your vehicle warranty period, contact us for a free consultation.

Once you determined that your vehicle is within the original warranty period, you need to review the repair history.

• If your new vehicle has been subject to at least 3 or more repairs for the same or similar problem while within the warranty period OR has been out of service for more than thirty (30) days throughout the warranty period
• If you believe your new vehicle still is not repaired;
• If your vehicle is a personal vehicle and not a commercial vehicle - Then your vehicle may qualify for claims under the new car lemon laws.

If you have more than 3 repairs and/or your car has been out of service for more than 30 days, it is time to gather up your repair orders and your purchase agreement.  If you do not have all the repair orders, contact your dealer and ask for a "warranty history report".  This will provide you with a history of repairs made under the warranty. 

Call or contact an attorney today.  SmithMarco, PC has been helping consumers with lemon law claims since 2005.  We are more than happy to take the time to review this matter at no cost just to see whether you qualify.  Moreover, the laws provide that upon successful resolution of your claim the manufacturer will have to pay your attorney fees.  Thus, we take your case at no cost to you.  We have had great success helping consumers with their lemon law claims throughout the entire Midwest.  We hope you will consider giving us the opportunity to help you as well.

• Find a reputable dealer to purchase your vehicle.  Talk to friends and family and see if they can recommend a used car dealer.  Research the dealer that you are considering and see if they have a good rating with the Better Business Bureau. 
• Be smart about picking out a car.  Remember that if you purchase a vehicle older than 7 years or with high mileage, your risks that the vehicle with need wear and tear maintenance costs will be higher. 
• Ask for a carfax history report.  You want to know the history of the car.  Carefully read the car fax report and ask questions.  Ask the salesperson about the history of the car. 
• Listen to your instinct.  If the check engine light comes on during the test drive or a bumper is misaligned, avoid purchasing the car.  The vehicle should be in good working order during the test drive.  If there are signs that the car needs repair or might have been in an accident, move on to another vehicle. 

You purchased a used car, but you feel that you are a victim of fraud.  Here are examples of consumer fraud cases :

•  Misrepresenting that your vehicle had never been damaged before when, in fact, it has been in a prior accident.
• Misrepresenting the ownership history to hide the fact that the vehicle was previously a rent-a-car.
• Concealing that the vehicle was previously a rebuilt wreck, or was considered a total loss in a prior accident.
• Misrepresenting the actual mileage on the odometer
• Forgery or loan documents to alter financing terms
• Misrepresenting financing terms or that you were financed when you were not.
• Concealing the vehicle was in a flood.  Due to many of the recent floods and storms, vehicles become flooded, and then placed back in the stream of commerce without disclosure that the vehicle may have been under water. 

There are many ways you can find out if you are a victim of consumer fraud. Contact one of our experienced consumer fraud attorneys for a free review of your case if you believe you were the victim of consumer fraud. SmithMarco, PC has been helping consumers with consumer fraud claims since 2005.  We are more than happy to take the time to review this matter at no cost just to see whether you qualify.  

This group of collection agencies which were the target of the FTC investigation were all based in California but their collection efforts spanned the country.  The FTC complaint alleged that the collection tactics of Rumson involved using abusive and profane language to debtors, threatened debtors with physical violence and improperly spoke with employers, co-workers, neighbors, friends and family members regarding specific details of the debts allegedly owed.  Furthermore, the collectors falsely threatened litigation, arrest and garnishment and in at least one reported claim, a collector threatened that it would dig up a buried body if payment was not made for a delinquent funeral bill. 

Not only were the collectors violating the rights of debtors but also their own clients.  The FTC found that upon obtaining the money illegally from debtors, Rumson kept more than their rightful amount and sometimes retained all of the money collected in lieu of paying off the original creditors who in fact still owned the debt and who the collectors were hired to collect on behalf of.  It was also found that on several occasions Rumson asked their clients for additional fees to cover the expense of filing lawsuits, which guaranteed their clients recovery, however no such lawsuits were ever filed and Rumson pocketed the extra money.   

These actions practiced by Rumson violated both the Fair Debt Collection Practices Act, barring deceptive, abusive and unfair debt collection tactics as well as the FTC Act, which more broadly expands to policing deceptive and unfair commercial practices in general.  With the economy in its current state, now more than ever is the time to be aware of your rights under the FDCPA and protect yourself from undeserved and illegal action. 

SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel you have been the victim of unfair collection practices and your rights have been violated under the FDCPA, contact us for a free case review.  

To better protect consumers who have been the victim of identity theft, FACTA instituted a "fraud alert" notation with the credit reporting agencies ("CRAs").  If you have been the victim of identity theft or believe your identity may have been compromised, you are entitled to contact the credit reporting agencies and place an alert on your report.  You need only notify one CRA, for  in response, the one CRA must notify the other CRAs of your alert.  The CRAs must then include a statement on your report that you have been a victim of identity theft and provide a number at which a credit grantor may contact you if any applications for credit are made in your name.  This alert is to last up to 90 days unless you request an extension which is to last up to seven years.  Similar to the fraud alert, FACTA allows consumers on active duty in the military to list this on their report.  The purpose of the active duty notation is to protect those on deployment while their credit remains idle.  
   
Another step taken in protecting consumers against identity theft under FACTA was by prohibiting merchants from printing more than five digits of your credit and/or bank cards or dates of expiration on consumer receipts.  Failure to comply with this provision is punishable with statutory damages ranging from $100 up to $1000 in individual actions and in a class action can grow exponentially.

In summation, to protect consumers FACTA requires the three main credit reporting agencies, Experian, Equifax and Trans Union, to provide credit reports free of charge annually; allows consumers to place fraud alerts on their credit reports if they are believed to have been a victim of identity theft; and third, FACTA requires merchants to truncate a consumer's bank or credit card number and card expiration date on customer receipts.    

SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel your rights have been violated under the Fair Credit Reporting Act or more specifically under FACTA, contact SmithMarco, P.C. for a free case review.

In Todd v. Target Corp., the plaintiff filed suit against Target Retailers for providing receipts that contained her credit card expiration date in violation of FACTA, § 1681c(g) of the FCRA.   2012 U.S. Dist. LEXIS 44362 (N.D. Ill. Mar. 30, 2012).  In this case, Todd shopped at the retailer on two separate occasions and paid by credit card both times.  On each instance, Todd did not use the electronic signature pad to sign her name after paying by credit card and the store clerk handed Todd two receipts-a customer receipt that reported only the last few digits of her credit card number and no expiration date in compliance with FACTA and a store copy for Todd to sign that did in fact report the expiration date of the card.  Todd argued that even though the store receipt was not meant for her, its distribution violated the Act and she was entitled to recovery under the statute.  Target on the other hand argued that the merchant copy of the receipt was not in fact a receipt at all and was only for the store's records.  Target explained that a merchant copy of the receipt is only printed when a customer does not opt to sign using the electronic pad.  This type of receipt is signed by the customer and retained by the store for its records.  When Target filed a motion for summary judgment arguing that the merchant copy was not a receipt as defined by FACTA and that it did not willfully violate FACTA by providing the plaintiff with the merchant copy of the receipt, the Court denied its motion.

Specifically, FACTA states that "no person that accepts credit cards…shall print …the expiration date upon any receipt provided to the cardholder at the point of sale…."  15 U.S.C. § 1681c(g).  Target argued that FACTA does not apply to the store's copies because they are solely retained for record-keeping purposes and not distributed to the customers. The Court disagreed with Target's opinion and in response, concluded that the merchant copy of the receipt did fall within the common definition. 

SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel you have been the victim of a FACTA violation and are interested in a free case review, contact us today. 

The purpose of a fraud alert is to stop the facilitation of the crime.  If a fraud alert appears on your report, a creditor may not extend credit without first contacting you at the telephone number provided.  An initial fraud alert lasts up to 90 days and may be renewed after the time has passed.  Furthermore, a fraud alert entitles you to one free copy of your report from each of the three major credit reporting agencies.   

Step Two: 
Order Copies of Your Credit Reports
After placing an initial fraud alert on your report, you are now entitled to one free copy of your credit report from each of the three major credit reporting agencies.  When ordering your report, it is highly recommended that you ask the agencies to report only the last four digits of your social security number to take extra precaution.  If you know what accounts were fraudulently opened or used contact those companies directly without waiting for copies of your reports so that no time is wasted.   

Upon receiving your report, mark all accounts and information which is related to the identity theft so that you may begin the dispute process.  For a more detailed explanation of the dispute process see our website.

Step Three: 
Create Report of the Identity Theft
An Identity Theft Report will aid in keeping you organized when dealing with repairing your credit.  To create a report you must file an Identity Theft Affidavit with the Federal Trade Commission ("FTC") stating you have been a victim of identity theft.  Upon completion, you should file a police report using the Affidavit and together, the Affidavit and your police report make up the Identity Theft Report.   With this report you can have fraudulent accounts and information more easily removed from your credit file, stop debt collectors from attempting to collect these fraudulent debts and place an extended fraud alert on your credit file.

If you believe you are the victim of identity theft, SmithMarco, P.C. can help you restore your good name.  SmithMarco, P.C. has been protecting consumers since 2005.  Contact us for a free consultation.

This law, which already exists in several other cities and states nationwide, is only applicable to the collection of consumer debts as defined under the FDCPA.  The FDCPA defines this as a person or business "who in the ordinary course of business, on behalf of himself or others, regularly engages in consumer debt collection." 15 U.S.C. 1692.  While this ordinance aims to protect consumers from debt buyers, it does not branch out to protect consumers from entities already excluded under the Illinois Collection Agency Act such as banks, lending institutions, licensed attorneys, credit unions and finance companies. 

On par with the requirements of the FDCPA, the new ordinance makes it a requirement to provide written notice to a debtor when attempting to collect a debt.  The notice must include a statement regarding the consumer's opportunity to dispute the debt and request validation of the debt.  Furthermore, the ordinance imposes strict guidelines on collectors to maintain notes on all communication with debtors, including but not limited to any payments received and/or payment schedules agreed upon.  Also in line with the FDCPA, the Chicago ordinance imposes monetary fines ranging from $250 to $2,500 for a first time offense and between $500 and $5,000 for any additional offenses during a 12 month period.  More egregious conduct may carry a harsher punishment of losing a collectors' license for four years prior to reinstatement.  

With its enactment, the City of Chicago has agreed to share any information it receives regarding collection agencies with higher authorities and fully intends to prosecute collectors who are in violation of the ordinance.  Bottom line is, collectors beware of any collection efforts not in compliance with the Chicago ordinance, as you stand to be held accountable under both City, State and Federal Law. 

If you feel you have been treated unfairly by a collector and would like a free case review, please contact SmithMarco P.C. for a more detailed explanation of your rights pursuant to the FDCPA.   

When applying for credit it is important to understand your rights and what a creditor may and/or may not ask of you during the application process.  First, a creditor may likely ask you for personal information such as race, religion, sex, martial status, etc. but may not use this information in basing its decision on whether or not to extend you credit.  A creditor may not impose alternate terms or conditions on your loan if approved simply because of this information, such as a higher interest rate or fees.  Factors such as income, expenses, debt and credit history however may legally be evaluated in determining whether to extend you credit.

Furthermore, a creditor may not ask if you are widowed or divorced, but may inquire about your marital status if you are applying for a joint account.  Similarly, a creditor may not ask for information about your spouse unless you are applying for a joint account or plan to make your spouse an authorized user on the account.  However, if you reside in a community property state, the creditor grantor may inquire about your spouse without violating the spirit of the ECOA.   Lastly, a creditor may not ask about your plans to have or to raise children but may ask about living children and whether or not you are financially responsible for their care as this may impact your ability to make payment on a debt.

If a creditor has discriminated against you, you are entitled to sue the creditor in federal court under the ECOA.  If successful, you are entitled to recovery as described above including your attorneys' fees and court costs.  If you feel your rights have been violated under the ECOA, contact SmithMarco P.C. for a free case review.   

1. Never give out your social security number on the phone or over the Internet unless you have an existing relationship with that person or business. Thieves need only one piece of information about you such as your social security or birth date; they don't need a credit card to obtain a credit report and then gather additional information about you.  

2. Birthdates, home addresses and social security numbers don't belong on social media.  Because social media has grown so much and is widely accepted as a form of communication over the last few years, nonfinancial information is easily accessible on social networking sites like Facebook, LinkedIn and Twitter.  Be careful and think twice before you put your personal information on social media sites. 

3. Notice when your credit card statements arrive each month (they come the same time every month) and when your current credit or debit card expires.  Most banks begin to send renewed cards in the month before the expiration, so be expecting a new card. Identity thieves can intercept credit cards or bills to change the billing address and rack up charges on your credit card before you realize it was stolen.

4. If a bank sends you courtesy checks and you are not planning on using the checks, tear them up or shred them.  A thief can pick them out of your garbage and sign for the money.    

5. Review your bank and credit card statements carefully for small charges.  Thieves often test out the account by charging a small amount, even a few pennies, before making a larger purchase.  Fraud alerts are generally not activated by purchases under a certain dollar amount. 

6. Review your credit report regularly.  You are entitled to ONE FREE COPY of each of your three credit reports every twelve (12) months by accessing the website  www.annualcreditreport.com or by calling 1-877-322-8228.

7. If an ATM does not look right, do not use it.  If the card feels differently after you swipe it or the machine looks unusual, avoid the machine or immediately cancel the transaction.  There could be a credit card skimmer attached to the ATM.  Skimmers are electronic devices placed in the card slot by thieves.  The skimmers capture your card information when you swipe it.  Also, look for any oddly placed cameras.  While it is normal for a security camera to face the person using the ATM, it is not normal for a camera to face the card slot. 

8. Pay attention when you pay with a credit card - especially at restaurants or other places where the card is removed from your sight.  Be aware if too much time is taken or if the customer in line behind you is looking over your shoulder.  If the purchase seems suspicious in any way, check your statements for unusual activity.  Look to see if the waiter has a device on their belt where they can swipe the card. 

9. Become friendly with a shredder and consider going paperless.  If possible, get your monthly financial statements and bills sent to you electronically.  Shred all documents that contain personal and financial information. Shredders have come down in price so purchasing one is an investment in safeguarding your financial identity. 

10. Use cash for smaller purchases.  Many people have become accustomed to using a credit or debit card for every purchase, no longer using cash.  ATM charges, or the fear of carrying cash, has more consumers opting for plastic instead.  However, the more times that card is pulled out to swipe; the more opportunities arise for a thief to obtain the information.  A good rule of thumb is, on smaller purchases, use cash whenever possible.

You, or someone you know, maybe starting to think about buying a new car for themselves or a family member.  When you buy a new car you expect it to run perfectly but not all do. As a new car owner you have rights if your automobile turns out to be a lemon.

With a new car you expect that your only trip to the dealership's service department will be for routine maintenance, and not due to a defect in the vehicle.  Auto manufacturers provide bumper-to-bumper warranties but sadly, defects do occur in new vehicles.  The warranty provides that the manufacturer will repair or replace any defective part of the vehicle at no charge throughout the period of the warranty, which typically lasts anywhere from 3 years or 36,000 miles to 5 years or 50,000 miles (whichever comes first the years or the miles).

Warrantees are great and cover all sorts of things but what good is it if your new vehicle must be taken in for repairs over and over?  This is where the lemon laws come in handy.  Lemon laws provide for relief by way of either a refund of your money or compensation for your lost value if the vehicle undergoes a certain number of repair attempts over a certain period of time.  Depending upon the state where you reside, if a vehicle undergoes as little as 3, and sometimes up to 5, repairs to the same or similar part of the vehicle within the warranty period, or other time as prescribed by the law such as the first year or so, you may be entitled to a recovery.  If your vehicle is out of service for 30 days or more because of a repair, most lemon laws would similarly bring the vehicle under lemon law protections.

If you have more than 3 repairs and/or your car has been out of service for more than 30 days, it is time to gather up your repair orders and your purchase agreement.  If you do not have all the repair orders, contact your dealer and ask for a "warranty history report".  This will provide you with a history of repairs made under the warranty.

SmithMarco, PC has been helping consumers with lemon law claims since 2005.  We are more than happy to take the time to review this matter at no cost just to see whether you have a claim. We have had great success helping consumers with their lemon law claims throughout the Midwest.  If you or someone you know has a new automobile that is spending a lot of time in the shop please give us a call for a Free consultation so we can help you as well.

The class action lawsuit, which included around 64,500 plaintiffs, claims that Kmart violated the FCRA because it failed to notify job applicants after they were denied employment based on information contained in a background check.  Under the FCRA, applicants must be notified when a potential employer takes adverse action based on information reviewed from a Consumer Reporting Agency (CRA).  In Pitt v. K-Mart Corp., the lead plaintiff filed suit alleging Kmart failed to follow required practices in connection with its use of background checks in the hiring process in violation of 15 U.S.C. § 1681 et seq.  Case No. 11-cv-00697, U.S. District Court for the Eastern District of Virginia.  Pitt argued that his misdemeanor convictions from 2002 included in the background report reviewed by Kmart took place prior to the time frame listed on the employment application which indicated it would report convictions from the preceding seven years only.  Pitt was not notified by Kmart in writing that he was not hired based on this information and therefore was unable to dispute the inaccuracy with the credit reporting agency(s) that were still reporting this information after the reporting period passed.  The lawsuit contends that Kmart's violation of the act was two-fold….first, that Kmart failed to provide the applicant(s) with the most current version of the FCRA Summary of Rights before taking adverse action that was based on the background check, and second that Kmart failed to provide the applicants with a copy of the applicable background check far enough in advance of taking adverse action against the applicant so that he or she had an opportunity to dispute any inaccurate information reported.  

Kmart has denied any and all allegations of wrongdoing claimed in the lawsuit and argued that its conduct was in compliance with the FCRA.  Despite these denials, Kmart has decided it is in its best interest to settle the lawsuit to avoid the expense and risk of uncertainty in continuing the litigation. 

If you feel you have been denied employment based on a background check and the employment did not comply with the requirements of the FCRA, contact SmithMarco P.C. for a free case review.

In the event a collector begins contacting you about a time-barred debt, the most important thing to understand is that a collector may still try to collect on it. Simply because a debt is time-barred does not mean it is uncollectable, however it does mean that you cannot be sued. If you think a debt is time-barred and the collector does not mention this to you, first, ask the collector if the debt is passed the statute of limitation to file suit. The FDCPA requires the collector to give you an honest answer to this question. If the collector fails to give you any answer, second, ask when the date of last payment was made. If the collector still fails to give you an answer, third, send a request for validation letter, which puts these questions in writing. This letter must explain that you are disputing the debt and requesting validation. The more information you give the collector about why you are disputing the debt, the better. For a detailed copy of a validation letter, you may visit our website.

The statute of limitations is not to be confused with the time with which a company has to report a debt on your credit report. The Fair Credit Reporting Act (FCRA) provides for the length of time an item can remain on your credit report. That time limit is completely exclusive from the statute of limitations. For example, the statute of limitations on a debt can be 5 years. However, the FCRA may state that a debt can be reported for up to 7 years. Thus, while a collector may no longer be able to sue you, they can still report the debt for two more years.

Remember, it is important to know your rights when dealing with collectors. Making a payment when the debt is time barred may result in re-opening the debt. If you feel your rights have been violated by a debt collector, contact SmithMarco P.C. for a free case review.

The third party communication rule extends beyond merely talking to a third party. For example, leaving messages on an answering machine that may be heard by others could violate this rule. The first exception to this rule is third party communication for the purpose of obtaining location information. A collector may speak with a third party to inquire about the debtor's address or home phone number. During this communication, the collector may not state that you owe any debt. The collector cannot provide the name of the collection agency unless asked, and the collector may not communicate with the third party on more than one occasion.

The second exception to the rule is when the debtor gives consent to the collector to speak with a third party on his or her behalf. It is important to understand that consent is valid only if you, the debtor, give it directly to the collector. Even if someone is making payments on your behalf, the collector cannot speak with that person unless specifically authorized to do so. Third, a collector is allowed to communicate with a few specific parties as explained in the statute. These parties include, your attorney, credit reporting agencies, the original creditor to whom you owe the debt, the creditor or collector's attorney, your spouse, your parent(s) or guardian if you are a minor, the executor of your estate and/or a co-debtor. 15 U.S.C. §1692c(b).

If you feel a collector has communicated with a third party in its attempt to collect a debt from you in violation of the Fair Debt Collection Practices Act contact SmithMarco P.C. for a  free case review.

What most people don't know is that credit reporting is not just limited to Trans Union, Equifax and Experian, and your credit histories.  The FCRA covers all "Consumer Reports" which means any communication by a consumer reporting agency ie: a consumer's credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used for the purpose of serving as a factor in establishing the consumer's eligibility for credit, insurance or employment purposes. 

"Consumer Reports" are not just the big 3 reporting companies; they are also a host of other companies that maintain databases which are used for background checks for employment, insurance, check cashing and criminal behaviors.  When you apply for a job and a background check is performed, chances are a company such as Hireright/USIS, Innovis, Intelius or Corelogic may be contacted for a report about you.  If you apply for insurance, a company such as National Insurance Crime Bureau (NICB) may be contacted, or if you apply for a bank account or credit union, companies such as ChexSystems or Certegy Check Cashing may be contacted.

Any company that provides "Consumer Reports" of any kind must comply with the FCRA which means that they must: be prepared to provide a free report to a consumer every 12 month period; have a reasonable dispute procedure in place when a consumer identifies inaccurate information in their reports; and must respond to the consumer within 30 days.

We have seen many instances of errors on "Consumer Reports" here at SmithMarco and there have been numerous news reports of individuals with the same name as career criminals who have been prevented employment due to a background check.  As a consumer, you have the protection of the FCRA to clear up any error on your consumer report and also the right to seek compensation when these errors cause you a loss of income.

Reporting inaccurate information

Creditors can only report information to the credit reporting agencies ("CRAs") that is accurate and may be liable under the FCRA for failure to do so.  Examples of inaccurate reporting include reporting inaccurate balances or payment history, reporting a debt as charged off when settled or paid in full and reporting a debt that does not belong to you.

Providing and reporting outdated information

Information provided to the CRAs must be up to date.  Common violations of this conduct include failing to report a discharge of bankruptcy, re-aging an account to continue the reporting in an effort to receive payment,and reporting information more than seven years old. 

Merging credit files

CRAs have a duty to report accurate information and at times can mix the credit files of its consumers.  A common example of this conduct includes duplicating negative credit information with a stranger who shares a similar name, social security number and/or other personal identifying information.

Failing to follow proper investigation procedures

When a CRA reports inaccurate information, you have a right to dispute the information and request an investigation.  In response, the CRAs must conduct a reasonable investigation into your claim and report back to you with its response.  Several situations in which the CRAs fail to comply include failing to inform a creditor of your dispute, failure to conduct a reasonable investigation into your dispute; failure to update or delete inaccurate information from your report; 

Requesting a credit report for an impermissible purpose

While there is a list of parties than have access to your credit report, there must be a permissible purpose for any party to review it or they will be in violation of the FCRA.  Some of these impermissible purposes include an employer pulling your report without your permission, a creditor of a paid and closed account pulling your report, and a potential creditor that you have not applied for credit with accessing your report.

Re-inserting previously deleted information

After a dispute is investigated and the CRA determines the information is inaccurate it must be deleted and cannot be re-inserted on your credit report unless you are first notified by the CRA.  If an account appears on your report after a CRA previously admitted to its inaccuracy by deleting, the CRA has a duty to notify you prior to its reinsertion or its conduct will violate the FCRA.

SmithMarco, P.C. has been protecting consumer rights since 2005 and handles Fair Credit Reporting Act cases. If information about you is inaccurately being reported, or if you feel that you're rights have been violated, please contact us for a free case review.

In Dennis Van Veen v. Equifax Information, et al., a Pennsylvania Court ruled on the issue of a furnisher's duty to conduct a reasonable investigation even if it takes more than the 30 days proscribed by the statute.  2012 U.S. Dist. LEXIS 21019 (E.D. Pa. Feb. 14, 2012).  In Van Veen, the plaintiff had a dispute with AT&T over a telephone bill that the plaintiff argued did not belong to him.  AT&T billed the plaintiff for $202 for a telephone line which the plaintiff claimed he never made calls from.  AT&T subsequently reversed the charges except for $62 which it proceeded to report to the CRAs as "charged off", thereby negatively impacting the plaintiff's credit report.  AT&T sometime later sent the plaintiff a letter stating the adjustment was due to incorrect billing.  After discovering the account on his report, the plaintiff sent a dispute letters to the credit reporting agencies asking the account be deleted from his credit file due to its inaccuracy.  However, instead of deleting the account, it  was verified and remained on his credit file.  The consumer subsequently filed suit arguing that AT&T failed to conduct a reasonable investigation into his dispute and failed to mark the account as "disputed" while taking additional time to conduct a reasonable investigation as required under the law.        

The court denied AT&T motion to dismiss the case stating that furnishers of credit information, like AT&T, have a duty to investigate disputes received from the CRAs.  In holding that AT&T may be liable for failing to take the necessary time to conduct a reasonable investigation and report the debt as "disputed" the court reiterated the purpose and spirit of the Act is not to discourage consumers from disputing accounts that are inaccurately reported.  Failing to report the debt as "disputed" would be considered misleading to a party reviewing the credit report as the "disputed" notation serves as an explanation into the consumer's credit worthiness.

If you feel your rights have been violated by a furnisher or credit reporting agency and information about your credit history is inaccurately reported, contact SmithMarco,PC for a free case review.  

1. 1.  Banks and credit grantors
   If you plan to borrow money from a bank, complete a loan application or apply for a credit card with any type of credit grantor, you must give them permission to access your credit file.  Your credit report gives them the information necessary to help determine whether or not to approve you, for what amount and at what interest rate. 

2.  Existing Creditors
Your existing creditors can access your credit file.  Having an open account gives your creditors permission to review your information to make sure you are still "credit worthy".

3.  Your Employer
Your Employer whether existing or potential can access your credit file but must have your express permission to do so.  A recent amendment to the FCRA requires potential employers to provide you with a detailed explanation of their right and intention to access your file along with your rights under the FCRA. 

4.  Landlords
If you rent an apartment or home, a landlord whether potential or existing may access your credit file to determine your ability to pay rent.  

5.  Collection Agencies
A collection agency to whom you owe money can access your credit file for the purpose of collecting on the account.

6.  Insurance Companies
An insurance company with whom you hold a policy may access your credit file to determine whether to renew an existing contract or whether to issue a policy in the first place.  

SmithMarco, PC has been protecting consumer rights since 2005.  If you feel your credit file has been accessed by an illegitimate party without a permissible purpose in violation of the FCRA, contact us, PC for a free case review. 

Regular inquiries, or "hard" inquiries are the only type of inquiry that affect your credit score.  A hard inquiry is an inquiry initiated by you, the consumer, when you submit an application for credit, insurance or employment.  Some examples of hard inquiries are mortgage loans, credit card applications, home equity loans, bank loans, store card applications.  Additionally, when a collection agency makes an inquiry into your credit file, it is treated as a hard inquiry.  Credit grantors view excessive hard inquiries negatively and are often deterred from extending you credit as a result.  Hard inquiries affect your credit score for 12 months from the date the inquiry was made.     

Account Review inquiries, Promotional inquiries - what are known as "soft" inquiries- on the other hand are not initiated by you and are not included in your credit score.  These inquiries are included on your consumer report but not displayed on a report received by lenders.  Account reviews are when your current lenders and existing creditors  take a look at your report to determine how your financial health is.  While these companies may take negative action toward your credit based upon what they see in one of these inquiries, the inquiry alone does not affect your credit.  There are also pre-approved credit card offers for promotional purposes that may appear to you on your credit report.  When credit card companies offer a special promotional offer, they are getting your name as part of a list of people whose credit profile would qualify them for the offer.  In these instances, the company making the inquiry is not getting your report, but your name and address (because your report qualifies you) but they must be making a bona fide offer of credit.  In other words, you the consumer should be getting those offers in the mail that coincide with the promotional inquiry.

Keeping a keen eye on your credit file is essential to maintaining good credit and will not negatively affect your credit score.  If you feel your credit report does not accurately reflect your credit worthiness and you are in need of assistance, contact SmithMarco P.C. for a free case review.  We have been protecting consumer rights since 2005.

As a general rule, a collector is allowed to rely on a creditor's representation when it comes to collecting debts.  In other words, if a creditor says a debtor owes a debt, the collector may go after the debtor without first ensuring its validity.  The FDCPA, however, provides a method for consumers who would like a collection agency to look into the collector's information concerning the debt with the creditor.  The FDCPA requires debt collectors, within five days of the initial communication, to provide the consumer with a letter explaining the consumer's right to request validation from the collection agency.  So while the collector may not have a duty to validate the debt prior to attempting to collect, the FDCPA requires collectors to put you on notice of your right to request it.  The FDCPA does put a time limit on this request as it must be made within thirty days of receipt of the initial collection letter.  Once a debtor notifies the collector that he or she requests validation, the collector's duty changes and it can no longer rely on the creditor's blanket representation.  The collector must obtain validation of the debt and report back to the consumer with the necessary information. 

Upon receipt of the request for validation, the collector must consider the debt as "disputed" and must cease all collection efforts until it provides the debtor with the requested information.  The FDCPA specifically states that if a debt is disputed, "the debt collector will obtain verification of the debt, or a copy of a judgment against the consumer and a copy of such verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector."  15 U.S.C. §1692g(b).  The collector essentially comes to a decision when in receipt of a timely request for validation.  The collector can either obtain that validation and provide it to the consumer which would allow the collector to continue its collection.  Or, the collector must discontinue its collection efforts.  There is no time limit on the collector to provide this validation.  The collector can take several months if it needs, as long as it does not attempt collection in the meantime.  The purpose of this section of the FDCPA is to protect consumers from collectors who either mistakenly or knowingly attempt to collect debts from the wrong consumer or that are not actually owed.   

SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel your rights have been violated by a debt collector under the FDCPA please contact us for a free case review. 

Once your repayment plan begins, if you default on your federal student loan, the entire balance of the loan may be accelerated or due in a single payment.  After acceleration, the loan is often placed with an agency for collection adding to your expense, as you become responsible for repayment of the principal and interest of the original debt as well as the collector's costs incurred to collect repayment. 

The Department of Education, the entity ultimately responsible for guaranteeing student loans, may obtain repayment by withholding money from income tax refunds.  Additionally, the Department of Education can withhold up to 15% of your paycheck without first obtaining a court order.  This action, known as an "administrative wage garnishment", does not require the collector to obtain a judgment in a court of law when collecting on federal student loans.  However the collector must still follow prescribed protocol.  When a collector intends to garnish to collect repayment of the loan, the loan holder must first send notice of the proposed garnishment and provide you with 30 days to object to the forced repayment.  The objection must be in writing, and upon receipt, a hearing will be set up either in person or by phone to present your case.  Based on the information provided and the documents submitted a decision whether or not to proceed with the garnishment should be rendered within 60 days.             

While the strict guidelines of the Fair Debt Collection Practices Act ("FDCPA") are applicable in the collection of student loans, with such a large amount of debt looming, debt collectors frequently go above and beyond the letter of the law to collect on debts that no matter the situation must eventually be paid off in full.  If you feel your rights have been violated under the FDCPA relating to collection efforts of a student loan, contact SmithMarco P.C. for a free case review. 

According to Richard Cordray, the first and current director of the bureau, the purpose of the bureau is to "promote fairness and transparency for mortgages, credit cards and other consumer financial products and service.  The central mission of the Consumer Financial Protection Bureau is to make markets for consumer financial products and services work for Americans-whether they are applying for a mortgage, choosing among credit cards, or using any number of other consumer financial products."   

The CFPB is responsible for drafting an annual written report describing its efforts taken in overseeing compliance with the Fair Debt Collection Practices Act ("FDCPA").  In this year's report Cordray explained that about one out of ten Americans are subject to debt collection activity for debts averaging around $1,500 each.  The CFPB intends to make the consumer finance market guidelines more effective by enforcing the existing rules in place, such as the FDCPA, thus empowering consumers.

If you feel your rights have been violated as a consumer in relation to your financial affairs, contact SmithMarco P.C. for a  free case review.

The "large participant" rule essentially grants the CFPB authority over approximately 175 of the nation's 4,000 consumer debt collection agencies, accounting for 60% of the industry's total annual debt.  Accordingly, the CFPB will use its newly granted authority to assess risks to consumers and more closely monitor whether the collection industry is adhering to the laws of the FDCPA.  Based on complaints received by consumers, the CFPB plans to focus its efforts on four areas of concern requiring collectors to provide required disclosures, provide accurate information to consumers during the collection process, create a consumer complaint and dispute resolution process and to communicate respectfully and openly with consumers. 

Included in the supervision of these 175 collection agencies are three types of businesses:  companies that may buy defaulted debt and collect the proceeds for themselves; companies that may collect defaulted debt owned by another company in return for a fee; and collection attorneys that collect through litigation.  The rule will require these entities to submit reports to the CFPB and subject themselves to random investigations by the agency.  

If you have been the victim of abusive collection tactics and are interested in a free case review, contact SmithMarco P.C.

The complaint alleged that four insurance companies, Genworth Mortgage Insurance Corporation, United Guaranty Corporation, Radian Guaranty, Inc. and Mortgage Guaranty Insurance Corporation received business referrals from lenders in exchange for kickbacks.  The CFPB stated that these types of kickbacks were common practice in the years leading up to the financial crisis of the mortgage and banking industry.

As part of the settlement, the four mortgage insurance companies have agreed to no longer issue kickbacks to the lenders and will pay the agreed upon penalty of $15.4 million.  Should these companies be caught engaging in this conduct they will be subject to additional fines.  Furthermore, the CFPB is requiring the insurance companies to be closely monitored to ensure compliance and must submit reports showing their conformity. 

The way the mortgage industry is set up, consumers are usually required to carry mortgage insurance on a loan greater than 80% of the value of the home.  The purpose of this insurance is to protect the lender from the risk of the consumer defaulting on the loan.  In an economy when interest rates were extremely low, consumers were failing to put more than the standard 20% down on a home and thus forced to take out mortgage insurance to cover their costs.  Making a large monthly mortgage payment created financial strain on many consumers.  When you combine a large mortgage payment with a monthly insurance premium that was inflated due to illegal kickbacks, it put consumers and our economy at an extreme disadvantage.  The CFPB saw an opportunity to protect consumers and our struggling economy and intervened. 

If you feel your rights have been violated as a consumer, contact SmithMarco P.C. for a free case review. 

The $350,000 judgment is the largest reported judgment on record in this type of class action suit.  The court stated the reason behind such a large reward was based on "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional."

In conclusion, the court further determined that with the money awarded from the judgment, the class representative would receive $1500, each class member would receive $500 and any remaining balance would be donated to a not-for-profit organization seeking to protect consumers from abusive debt collection tactics and/or working to increase consumer awareness of their rights under the law. 

If you feel your rights have been violated under the FDCPA, contact SmithMarco P.C. for a free case review.

According to the FTC complaint, SCS and Jacob have worked together since 2006 collecting debts.  SCS purchased the debts and then contracted with Jacob to contact debtors for collection on its behalf.  In its effort to collect debt, Jacob called on consumers and pressured them to make payment by phone.  Together, these two collectors violated the law by falsely threatening to sue consumers as a means of getting them to pay.  A debt collector is prohibited by law from using false, deceptive, or misleading representations or tactics when collecting a debt as stated under the FDCPA in section 1692e.  The complaint went on to allege that Jacob told the debtors they were required to pay an additional fee of $18.95 when making a payment over the phone, however failed to mention this fee was waived when making a payment by mail or over the internet.  Using this tactic, SLS and Jacob collected close to $800,000 since 2008 in fees from consumers.

In April both parties agreed to a settlement where the collection agencies agreed to payback the almost $800,000 collected from consumers in fees over the past several years.  Furthermore, SCS and Jacob are barred from making misrepresentations in its collection efforts including collecting additional fees and threatening to file suit against consumers if it is not their intention to do so.    

If you feel your rights have been violated by a debt collector contact SmithMarco, P.C. for a free review. 

Why - what is the big deal?
Your credit score is important.  Unpaid debts, late payments, judgments and misreporting will not help you. They  will keep your score low and make it difficult to obtain a mortgage, get a loan, finance a new car and rent an apartment. 

What can I do to clean my credit? 
Your first task is to pull a copy of your credit report.  You are entitled to one free report every year.  Contact annualcreditreport.com  to obtain your free copy from each of the three major credit reporting agencies:  Trans Union, Experian and Equifax.  Or you can also contact each of those reporting agencies separately for your free copy.

Got report, now what?
Read it carefully.  Really carefully.
First, look at your personal information.  Make sure the names, dates, social security number and addresses are correct.  You will be surprised to learn how often there are mistakes or credit files are combined

Second, check all the accounts that are being reported.  Make sure that the opening dates and payment history are  correct.  Remember, credit agencies do not need to report all your payment history, but what they report must be correct.  Also, debts can only be reported for 7 years.

Third, if there is an error, you must dispute it.  The best way to dispute it is to send a letter via certified mail to the credit bureau.  Mail this letter and include any proof that you have to back your claim.  You can check out our sample letter and instructions by clicking here. 

If you dispute the debt, the Credit Reporting Agency has thirty days from the day they receive your dispute to respond.  If they verify information that is inaccurate or untrue, you might have a claim under the Fair Credit Reporting Act. 

Are you confused about your credit report?  Check out our website for useful information and tips.  Still unsure?  You need to understand your rights as a consumer to move forward.  SmithMarco has been protecting consumer rights since 2005.  Contact us today to get your free consultation. 

In December of 2012, Caprio received a collection letter from HHRG attempting to collect an alleged debt.  Caprio argued the wording in the letter was confusing to the "least sophisticated consumer" and could encourage him to follow improper procedures thus violating his rights under the FDCPA.  The letter received from HRRG stated,
 
"If we can answer any questions, or if you feel you do not owe this amount, please call us toll free at 800-984-9115 or write us at the above address. This is an attempt to collect a debt. Any information obtained will be used for that purpose. (NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION)."

On the back of the of the collection letter, HRRG had written the FDCPA mandated disclosures:

This is an attempt to collect a debt from a debt collection agency.  Any information obtained will be used for that purpose.

Pursuant to Sec. 809 of the Fair Debt Collection Practices Act, unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Under the FDCPA, if a consumer fails to dispute the debt in writing within 30 days of receipt of the collection letter, he waives his right to request validation from the collector.  Caprio argued that a consumer could be confused by the letter and may be unsure which route to take….should you call to collector and dispute the debt, which could essentially waive your right to dispute within 30 days or should you write a letter, which would be the proper method of disputing.  While the District Court disagreed with Caprio's interpretation of the letter as confusing, on appeal, the Third Circuit overturned the ruling and concluded that the collection letter was in fact deceptive and could be misinterpreted.  For this reason, the Third Circuit concluded that the language on the front of the collection letter was in violation of the FDCPA. 

If you are having problems with debt collection or feel your rights have been violated pursuant to the FDCPA, contact SmithMarco P.C. for a free case review.

Currently, there is no hard and fast rule which establishes how many phone calls to a debtor are deemed excessive and harassing, and hence a violation of the FDCPA.  If a case makes it a court of law, individual judges are left to decide whether the conduct of the collector amounts to a violation.  In Arteaga v. Asset Acceptance, LLC, the court explained that while the FDCPA is generally a strict liability statute, meaning that even if an inadvertent violation occurs, liability normally follows.  733 F.Supp.2d 1218, 1227 (E.D. Cal. 2010).  However, certain sections like 1692d(5) add an intent requirement that must be proven by the debtor, making the standard by which harassment is judged an objective one.

While the FDCPA does not define what repeatedly or continuously means, like its express prohibition of the timing of calls (not before 8:00 a.m. or after 9:00 p.m.), there is no such definition in the FDCPA against calling a debtor every day or even more than once in the same day.  The Federal Trade Commission, the federal agency charged with enforcing the FDCPA, defines continuously as "a series of collection calls, one right after another."  The FTC defines repeatedly as "calling with excessive frequency under the circumstances."  FTC Statements of General Policy or Interpretation Staff Commentary on the FDCPA, 53 Fed. Reg. 50097, 50105 (Dec. 13, 1988).
 
There are however several factors that go into determining whether the contact from a collector amounts to the "repeated" and continuous" harassment referred to in the FDCPA.  Some of these factors include, immediate call backs, calls after a cease and desist request, high volume of calls over a short period of time, calls after reference to an attorney, calling a debtors place of employment, daily phone calls and leaving messages.

We have covered this topic previously including blogs (click to read):  Multiple Calls From Collectors as Harassment, What Are Too Many Calls Considered Harassment, and Multiple Calls -What Should I Do.   

Indeed, call volume is a complaint that we hear from many consumers every day.  SmithMarco is committed to protecting consumers' rights.   If you are receiving repeated or continuous telephone calls from a debt collector or feel your rights have been violated in any way under the FDCPA, contact SmithMarco P.C. for a free case review. 

As explained in previous posts,  credit or consumer reports affect several aspects of your life -from whether you get a mortgage to your job application.  Consumers who pay off their debts in full and on time every month generally have good credit scores making it easier to obtain even more credit at low interest rates.  On the contrary, consumers who cannot pay off their debt and continue to make late payments allowing their debt to accumulate, have a difficult time getting credit and suffer increased interest rates.  Low credit scores make it even harder to get on top of your expenses or be approved for additional credit.   Previous posts on this topic include Disputed Accounts Reported on Your Credit and Spring Cleaning Your Credit Report. 

Credit Reporting Agencies have been in existence since the early 1900s, reporting information on each consumer.  Since its inception, there have been accompanying issues such as distribution of inaccurate information and dissemination to any party to review a consumer's private report.  As a result, the FCRA was enacted in the 1970s to protect consumers from dissemination of this private information and to establish rights in an industry that drives your financial well-being. 

The FCRA imposes important duties upon credit reporting agencies ("CRAs") that every consumer should concern themselves with.  Under this law, a CRA must provide consumers with the information contained in their individual file, and take action to verify any information disputed by the consumer.  Negative information can only be reported on a consumer's file for a set period of time, generally around 7 to 10 years, providing the consumer with an opportunity to have a fresh start.  In the event that negative information is disputed and subsequently removed from the consumer's credit report, a CRA must inform the consumer in writing within five days before re-reporting the information.  Furthermore, recent amendments to the FCRA allows consumers to obtain one free copy of their credit report a year from annualcreditreport.com in order to ensure the information being reported is accurate and to allow consumers the opportunity to dispute any inaccuracies. 

If you feel your rights have been violated under the FCRA you have a right to file suit under the Act and may be entitled to damages as a result.  Contact SmithMarco P.C. for a free consultation. 



FICO breaks down your score into Payment History, Amounts Owed, Length of Credit History, New Credit and Types of Credit Used.  The importance of each category varies depending on the consumer.  For example a consumer with a new credit history will be factored differently from a consumer who has been using credit for a long period of time.  The importance of any one factor in your credit score calculation depends on the overall information contained in your credit report.  For some people, one factor may have a larger impact than it would for someone with a much different credit history. In addition, as the information in your credit report changes, so does the importance of any factor in determining your FICO Score.

1. 1.  Payment History (35%)
   The first thing any lender wants to know is whether you've paid past credit accounts on time.  This is one of the most important factors used in determining your score.
2. 2.  Amounts Owed (30%)
   Having credit accounts and owing money on them does not necessarily mean you are a credit risk but instead your score is determined by reviewing how much is owed on each account in comparison to your credit limits.
3. 3.  Length of Credit History (15%)
   In general, a longer credit history will increase your score, however, even people who haven't been using credit long may have a high FICO Score, depending on how the rest of their credit report compares.  For example your score looks at the length of time your old account has been established, the age of your newest account and an average age of all your accounts.
4. 4.  New Credit (10%)
   Research shows that opening several credit accounts in a short period of time represents a greater risk - especially for consumers with minimal credit history.
5. 5. Types of Credit in Use (10%)
   Your FICO Score takes into account a mixture of credit cards, store accounts, installment loans, finance company accounts and mortgage loans.

For information on viewing your credit report for accuracy and scores, review our blogs Reviewing Your Own Credit Reports and  What Qualifies as a "Good" Credit Score.

If you are having issues with your credit report and need the advice of experienced attorneys, contact SmithMarco P.C. for a free case review.

When taking steps to improve your score, first, you need to check your report.  If you have not done so already, order a free copy of your report from annualcreditreport.com.  As explained in several previous posts, the Fair Credit Reporting Act ("FCRA") entitles you to one free copy of your report a year, so use it!  Your report contains all of the information used to calculate your score, so you need to know what is on it before determining what needs to be done to improve it.  Check to make sure your report contains only accurate information, positive or negative, and if you find errors on your report you can dispute the errors with the credit reporting agencies ("CRAs"). 

The next step to improving your score is making an effort to reduce your debt, obviously a task easier said than done.  Make a list of all of your outstanding debt, compare balances and interest rates and determine which accounts can be paid off and/or closed, effectively raising your credit score.  Too many open accounts will reduce your credit score and cause financial strain, while on the contrary, paying off debt and closing excess accounts will raise your score and relieve stress.  Try to determine a payment plan on accounts making it easier to pay off excessive balances and organize your finances.  Always try to make more than the minimum monthly payment on accounts, which will quickly reduce your balances and raise your score faster as a result.   

A simple way to improve your credit score is to make timely payments on your accounts.  Payment history accounts for as much as 35% of your score and late payments will weigh down your number.  Delinquent payments, even if only a few days late, and collection accounts negatively impact your score.   If you missed payments, get current and stay current.  The longer you continue to make timely payments, the more your score will continue to increase. The older a negative account is, the less it impacts your score.  It is important to note that paying off accounts or making timely payments will not remove the delinquent history from your report but will improve your score moving forward.   

One way to ensure timely payments, is to set up monthly payment reminders.  This can either be a simple alert or an automatic withdrawal.  There are several online programs that allow you to set up automatic withdrawals for your accounts or email reminders to make your payments.  Another way to improve your credit score is to reduce the amounts owed on your balances.  This category makes up 30% of your credit score.  Keeping your credit card balances low is an easy way to drive up your score but requires a conservative approach to your finances.

For more information on your credit score or assistance with credit report problems contact SmithMarco P.C. for a free case review.

The Act established procedures for resolving mistakes on electronic fund transfer account statements, including transfers that you or anyone you have authorized to use your account have not made; transfers incorrectly identified or showing the wrong amount or date; computation errors; transfers for which you request an explanation or documentation, due to a possible error.  Importantly, however, it provides that when an error is recognized, your financial institution has obligations to you to investigate, and where necessary, credit your account to correct the errors. 

If you notice an error in an electronic fund transfer relating to your account there are specific steps you must take to comply with the Act.  First, under the Act you must write or call the financial institution immediately and no later than 60 days from the date of the erroneous statement.  You must provide the name and account number and an explanation of why you believe there is an error with the type, dollar amount and date the error was made.  You may be required to send details of the error in writing within 10 business days.  In response to your dispute, the financial institution must investigate the error and provide a resolution within 45 days.  If it takes more than 10 business days to complete the investigation (20 days for new accounts) the financial institution must re-credit the amount in question until the investigation is complete.  Upon completion of the investigation the financial institution must correct the error if it finds one was made and make the re-credit final and if no error exists, provide a written explanation and notify you of the deducted re-credit. 

Another important aspect of EFTA is the need for written authorization to take payments from your account.  Many times, debt collectors convince (or coerce) consumers to set up regular automatic payments to be removed from the consumer's bank account on a monthly basis.  Whenever a creditor or collector is taking regular monthly payments out of your account, they must obtain your authorization in writing.  This is a common mistake made by collection agencies.

If you feel your rights have been violated under the Electronic Fund Transfer Act and would like a free case review, contact SmithMarco P.C.

If you have a dispute under the FCBA, you must follow the procedures outlined in the statute but only as it applies to billing errors.  Examples of billing errors include charging the wrong account or amount, charges for goods that were never received, failing to post payments and/or credits to your account, failure to send goods to a current address.   To exercise your rights, you must write a letter to the creditor at the designated "billing inquiries" address with your name as it appears on your billing statement, address, account number and an explanation of the billing error you are complaining about.  The letter must be received by the creditor within 60 days of receipt of the disputed billing statement.  Similar to disputing an item on your credit report, this letter should be sent certified mail, so that you have proof of when it was sent and received by the creditor.  Under the law, the creditor must respond to your dispute within 30 days of receipt and must provide a resolution within two billing cycles.

The FCBA permits you to withhold payment during the investigation process, however any remaining portion of the bill must be paid.  During the investigation, the creditor may not initiate collection efforts or take legal action on the disputed amount but it may use the balance against your credit limit.  Much like the Fair Debt Collection Practices Act ("FDCPA") a creditor is prohibited from threatening to damage your credit by reporting you as delinquent because of the dispute and potential creditors cannot refuse to extend you credit on the grounds that you have a bill under dispute.

Under the FCBA, if the creditor discovers an inaccuracy on your bill during the investigation process, it must provide you with a written explanation of the corrections to be made to your account including any finance charges and/or late fees that may have accumulated during the dispute process.  However, if the creditor determines you actually owe the disputed amount, it must provide you with a written explanation and if requested, copies of documents used to reach its decision.  Should you disagree with the results, you must notify the creditor within 10 days and while you may refuse to make payment, it is now that the creditor may make efforts to collect either by hiring a collection agency or filing suit.  The FCBA, a consumer minded statute, prohibits a creditor from collecting a disputed amount if it fails to follow the outlined procedures. 

Related issues are discussed in the following blogs: Taking Steps to Repair Your Credit and Disputed Accounts Reported on Your Credit

If you feel your rights have been violated under the FCBA, contact SmithMarco P.C. for a free case review.       

Because disputes regarding your dissatisfaction of the quality of purchased goods and services are not "billing errors", the dispute procedure doesn't apply.  There is however an avenue for you to reverse the charges if you paid for merchandise or services by credit card.  In the event the purchased merchandise fails to live up to your expectations, you can take legal action against the card issuer.  To initiate a lawsuit under the FCBA you must have purchased the goods or services totaling more than $50 in your home state or within 100 miles and have made a good faith effort to resolve the dispute with the seller prior to filing suit.

The Federal Trade Commission ("FTC") is the agency designated to deal with enforcement of the FCBA and consumers may file disputes directly with the FTC.  You may also file private causes of action in state or federal court to recover statutory damages of double the erroneous finance charges, actual damages and attorney fees if you are successful on your claim.  If the unlawful conduct is extensive, you can also file a class action suit and seek damages up to the lesser of $500,000 or one percent of the net worth of the creditor. 

If you feel your rights have been violated under the FCBA, or any other consumer statute contact SmithMarco P.C. for a free case review. 

collectors contact friends and/or family members

Collectors are permitted to contact friends and/or family members solely to obtain location information regarding the debtor.   Moreover, the FDCPA states that when contacting the third party, the collector must notify the person they are calling that they are seeking the location information of the consumer, and may not disclose the name of the collector's employer unless expressly requested by the person called.   The collector can only call that third party one time, unless they have good reason to believe that the information given by that third party the first time around was incorrect.  Most importantly, however, the debt collector must refrain from disclosing to the third party that the consumer owes any debt. 

Despite the strict guidelines of the FDCPA, collectors often go beyond the four corners of the statute and push the envelope to obtain payment thus violating the Act.  Collectors often times make third party contact to coerce the debtor into making payment by leaving cryptic messages for the collector to pass on.  The debt collector seeks to incite the debtor into making a call to the collector so that the collector can make further attempts to coerce payment.  Sometimes, if the collector contacted a parent of the debtor, the collector would attempt to convince that parent to pay on the debtor's behalf. 

If the collector contacting the third party makes any disclosures regarding the fact that the debtor owes any debt or if the third party has knowledge that the collector has already located the debtor, the debtor may be able to sue the debt collector for damages and attorney fees under the FDCPA. The third party has some of the same rights under the FDCPA as the alleged debtor.  Any attempts by the collector to use abusive or threatening language, or any means of harassment,  when speaking with the third party can subject the collector to liability to that third party under the FDCPA.  Also, if that third party has made it abundantly clear that they cannot lead the collector to the debtor, but that collector insists on continued calls to that third party, then the third party has a claim against the collector under the FDCPA. 

Other blogs written related to this topic can be found at Debt Collection, Third Party Contact and Collectors Call Your Friends, Family and Co-Workers. 

If you or a friend or family member are being contacted by a collector and feel your rights have been violated under the FDCPA, contact SmithMarco P.C. for a free case review. 

Otherwise, perhaps the call was harmless or you let it go to voice mail. Don't be afraid to call back and ask questions. Find out who they are, who they are collecting for, and if they will be sending you anything in writing in the mail. Most importantly TAKE GOOD NOTES. Keep a call log with you, and when these calls come in, jot down the date, the time, the number that appears on your caller ID, the name of the person that spoke to you, and what was said.

If the call went to a location or phone, such as your work number, where you cannot take these types of calls, tell the collector. Be clear that you cannot take calls at your work or at that number, or perhaps on a certain day or at certain times. Collectors by law must modify their calling times and what numbers they call if they receive notice that you cannot take calls at that particular time or place.

Not all collectors are bad. Some present a meaningful opportunity to settle a debt for less than the full balance. But there are some unpleasant debt collectors, and though the first call or two may not be that harrowing of an experience, many step it up a notch on subsequent calls as their job is to collect money that is owed. It is always best to keep a log when discussing financial issues.

If you feel that you have been abused or harassed, that calls are coming into an inconvenient location or time, or that the collector is otherwise being deceptive, please call my office for a free case review. 

An important scam to be aware of is fake debt collectors.  A scam debt collector will violate virtually every section of the FDCPA.  The reason is because if you tried to search for this company in order to serve them a complaint under the FDCPA, you won't find them.  If you are able to get a company name out of them, it likely is a made up name.  If you get an address out of them, chances are the address is a UPS store.   If you give them your bank account information your money will be taken for a debt you likely don't even owe.  Moreover, you will see on your bank statement that the payee is not the same name as the people who called you. 

When trying to determine the legitimacy of a collector or agency who is contacting you, the first rule of thumb is to never give out your personal information.  They may even have your social security number and address.  Chances are they obtained it from a pay day loan operation that may have been used.  Still, don't be fooled by them knowing who you are.  Additionally, a legitimate collector should be able to provide you with the name and address of both the collection agency and the original creditor and the amount you owe.  A collector is obligated by law to have this information on hand for you and either failure or refusal to provide it is usually a red flag that the collection is a sham. 

Scam collectors never send out collection letters.  Should you have suspicions that a collector is a fake collection agency, demand that they send you something in writing, on letterhead, describing the debt, to whom it is owed, and the exact balance.  A fake debt collector will likely refuse this.  Or, they may send you an e-mail or a letter on a letterhead that does not have any location information or office address. 

A fake collector will be overly aggressive.  They will threaten to send you to jail, take your home or seize your assets, all to collect a payment.  Make sure to never hand over a credit card or bank account number.  We have written a few other articles in our blog on this issue, and they can be found at: Abusive Debt Collectors Shut Down By Feds and What Do I Do Now.

If you are being contacted by a debt collector or feel your rights have been violated in anyway under the FDCPA contact SmithMarco P.C. for a free case review.  

collection agencies

Under the FDCPA, you have a right to request that the collector cease all verbal communication with you and the collector must obey your wishes.  However, despite your request, not every communication thereafter is considered illegal.  A collector can contact you to inform you it has ended its collection efforts or to inform you it intends to take legal action against you.  Also, the collector can call you to inform you of a specific remedy the creditor intends to avail itself of, as long as the creditor does intend to avail itself of those remedies.

The FDCPA prohibits collectors from making empty threats.  What this means it that a collector cannot threaten to sue you or garnish your wages and/or bank accounts if they do NOT intend to take this action or legally cannot take such action against you.  A collector can however, make these statements in an effort to collect your debt if they are in fact a statement of their true intentions.  While such threats are intimidating and may even seem like harassment, these comments do not cross the line of illegal collection tactics when they are sincere.  A collector may NOT however, threaten to arrest you or garnish your wages or bank account without a judgment against you first.  

It is NOT a violation of the FDCPA to contact a third party such as a friend, family member, or co-worker.  In a post last week, I blogged about third party contact and how collectors use this legal collection practice to get debtors to pay off their debts.  It is a common practice for collectors to contact your friends, family and/or neighbors and this conduct, when done within the confines of the FDCPA is NOT in violation of the statute.  A collector may communicate with a third party to obtain information about your whereabouts and this conduct is NOT in violation of the statute.  However, a collector cannot communicate with the third party on more than one occasion, unless it believes there is new or additional information regarding the debtor.  Furthermore, the collector cannot disclose any information regarding you or your debt when communicating with the third party or the conduct is in violation of the FDCPA.   

Debt collectors calling you at multiple numbers a few times in a day is also NOT considered a violation, especially if the collector has never spoken with you directly.  While section 1692 d(5)  of the FDCPA states that multiple calls made to the consumer with the intent to annoy or harass the consumer is a violation of the statute, more and more courts are holding that mere volume of calls is not sufficient to amount to a violation of the Act.  You must be able to show some intent to harass, in other words, the natural consequence of the calls is to harass you and coerce you into payment. 

If you feel your rights have been violated under the FDCPA, contact SmithMarco P.C. for a free case review.

Currently, before Congress is the Medical Debt Relief Act ("MDRA"), a bill that proposes assistance to consumers facing insurmountable medical debt.  The purpose of the MDRA is to reward consumers for their diligent efforts in eventually getting their debt paid off.  The current state of the law is that even if you pay off your debt in full, it will remain on your report for approximately seven years, continuing to tarnish your credit score.  The Act would require the credit reporting agencies ("CRAs") to remove any paid medical debt under $2500, 45 days after payment was made.    
  
The motivation for the MDRA is that a consumer with good credit should not be punished for unforeseen circumstances, like failing health.  Because credit scoring is supposed to gauge risk, whether you as a consumer pay your bills in a timely fashion, pay off your loans and pay off your credit cards every month, it seems unfair to include medical debt in this category after if it has been paid off too.  The reason medical debt should be looked at differently, is because it is an expense you have no control over.

This MDRA will prevent credit reports of numerous consumers from being unfairly tarnished, forcing consumers to pay higher interest rates on loans and credit cards because of ailing health.  Instead, Congress should reward these consumers for paying off their debt by deleting it from a credit file after it has been paid.  Unfortunately, this is not the first time the bill has been before Congress.  While previous attempts to pass this legislation have been futile, perhaps this time around there will be greater success.

If you are having problems with debt collection of medical debts and or issues with your credit report, contact SmithMarco P.C. for a free case review. 

The FTC sent warning letters to as many as 10 business notifying them that the current plans in place for performing background checks on consumers directly violates the new amendments to the FCRA.  Specifically, these companies are using the information obtained in background checks to hire new employees and failing to provide notice to the individuals of their intention to review and use the information.  The law requires that companies providing information contained in the background check assure the accuracy of their records and notify the consumer when a background check has been performed.  When a business doesn't take these steps, it must provide notice that its background checks may include errors and are being used for marketing or entertainment purposes only.

When putting these companies on notice of their potential violation of the statute, the FTC states that its primary concerns is for the consumers whose information is being used that may be inaccurate or out-of-date.  When companies don't comply with the letter of the law, these consumers do not have an opportunity to protect themselves by reviewing their reports and challenging any potentially inaccurate information. 

While the FTC is keeping a close watch on companies to assure compliance, it states that in these 10 cases there was some indication of non-compliance and warns that failure to change their current practices may force a more formal investigation resulting in hefty fines. 

See our other related blogs on background checks and some of the stories of some unfortunate consumers: Backgound Checker Violates FCRA, Another Horrifying Background Check Story, and  Employment Background Causing Job Loss. 

If during your search for a new job or during your employment your employer failed to provide you with notice of their intention to access your credit report, your rights may have been violated under the FCRA.  Contact SmithMarco P.C. for a free case review. 

In answering the question, I must first address what is considered "too old" to collect.  A collector can contact you to collect a debt for the rest of eternity.  However, you cannot be sued on a debt after your state's statute of limitations has passed and it cannot report the debt on your credit file after 7 to 10 years depending on the type of debt being collected.  For a complete list of each state's statute of limitation based on the type of debt being collected visit our firm's website.  Both threatening to file suit when the time to file that suit has passed, and/or threatening to reporting the debt to the credit bureaus beyond the reporting time limits are a violation of the Fair Credit Reporting Act ("FCRA") and the FDCPA.      

The reason behind why repayment of an older debt is optional is because if you cannot be sued for the debt and it cannot be reported on your credit file, then the only reason one would pay the debt would be a moral obligation.  However, there is no longer any legal obligation to pay that debt.  In fact, in some states making payment on an old debt could re-start the statute of limitations period, making the debt essentially new and collectable.  Essentially, the new payment is taken as a new payment agreement or new contract which will have its own new statute of limitations.  If you do plan to repay the debt, make sure you either pay the debt in full or for an agreed upon settlement amount.  Making a small good faith payment will restart the statute of limitations and the collector then has the right to file a law suit. 

If you want to stop a collector from contacting you regarding an optional debt, the first step is to write a cease and desist letter telling the collect to stop contacting you.  Make sure to send this letter by certified mail and to save a copy for your records so you have proof that the collector received it.  Upon receipt, under the FDPCA, the collection agency can no longer contact you to collect the debt outside of a few isolated exceptions-acknowledging receipt of your correspondence and to notify you of a lawsuit (which it cannot legally file anyway).   

If you feel your rights have been violated under the Fair Debt Collection Practices Act, contact SmithMarco P.C. for a completely free case review.