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Frequent FDCPA Violations
Sample Dispute letter to Debt Collector
Can a debt collector inform someone else that I owe debt?
In general the Fair Debt Collections Practices Act (FDCPA) prohibits debt collectors from informing anyone else that you owe a debt. For example, it would be illegal if a debt collector sent a letter to or called your employer, neighbor, relative, or friend and informed that person that you were behind on your credit card.
There are a few exceptions to keep in mind. A debt collector can contact your attorney (or anyone else you tell them to contact), a consumer reporting agency, or the creditor. A debt collector could also contact someone if it has been approved by the court or if it is necessary to enforce a judgment.
If you have been the victim of a wrongful disclosure you should contact an attorney. Disclosing this type of private information can be very embarrassing. Be sure to keep track of the date and time of the contact and what was said.
Does the FDCPA protect me even if I do not owe a debt?
Yes. One of the important protections that the FDCPA provides is that debt collectors cannot harass any person in connection with the collection of a debt. Oftentimes innocent people are victims to debt collection harassment for accounts that do not even belong to them.
For example, a recent client of mine received a number of letters from a debt buyer for a credit card that was not hers. She disputed the debt each time in writing. The debt collector persisted with its collection attempts and even submitted (false) derogatory information on her credit report.
We sued the debt collector to stop this pattern of harassment. We then discovered that a number of the credit card charges were made at restaurants and stores in Texas. My Californian client had never before set foot in Texas. Clearly this was a case of identity theft. The debt collector paid my client money damages and removed the negative information from her credit report.
My client had success in her case because she did a good job of sending her disputes in writing and kept copies for her file. It's important for all people to keep good records of all communications with a debt collector. It's also important to monitor your credit report as you never know when a debt collector might come after you for something that you do not even owe.
Can a Collector Garnish My Wages or Levy My Bank Account if I owe a Credit Card Debt?
Yes, but ONLY after the collector has obtained a judgment after filing suit. Unfortunately, many debt collectors file suit and fail to properly serve a debtor with the summons and complaint in a case. Debt collectors sometimes serve the complaint at an old address.
Later, the debtor is shocked to see that their wages are being garnished and/or their bank account is being levied. This is because the debt collector files a proof of service with the court and proceeds in obtaining a judgment by default.
Fortunately, however, we can file a motion to set -aside the default judgment and ask for the court to allow the alleged debtor an opportunity to defend the case. We have been able to set-aside these default judgments for many clients and successfully defend the case with our client paying nothing to the debt collector.
What can I do if my personal information gets hacked or disclosed by a company?
Maintaining the privacy of personal information – like a social security number, bank account number or birthdate – is extremely important to many consumers. Identity theft is commonplace. Many identity thieves find victims by acquiring their personal information from another company's website.
Perhaps you have heard about the data breaches by companies such as Home Depot, Target and Anthem Blue Cross. If your information has been divulged by one of these or another company without your permission you do have rights.
California has the Data Breach Act found in Civil Code Sec. 1798.80. It requires that any business that “owns or licenses personal information about a California resident shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.”
If a company fails to do that and your information is divulged you can bring a lawsuit. The lawsuit can include recovery for actual damages that are caused as well as a statutory penalty. Importantly, if you are successful the law requires the other side to pay for your attorneys' fees and costs. Thus, we may take your case without any charge to you.
What happens if a car dealer cannot find financing for a car I purchase?
Purchasing a new or used car can be an exciting event. After reviewing and signing the stack of papers it's a great feeling to drive your car off the lot. However, we occasionally see people lose their car shortly after purchasing it because the dealership cannot find financing. Clients often wonder what rights they have in such situations.
Here's what happens. Frequently the dealership which sells you the car is not going to be the same company that services your loan. The dealership will look to find another company (usually a bank) to finance the loan. Pursuant to most car finance agreements the dealership has ten days to find that other company, if they don't then they must finance it themselves.
Problems arise when the dealership tries to rescind the agreement past the ten days. Or worse, they repossess your car more than ten days after you purchased it because they could not find anyone to take your loan. If this happens it may be a wrongful repossession. Our firm handles these claims. Call us if this happened to you.
What can I do if my mortgage company is not calculating my account correctly?
A frequent cause of frustration and concern for our clients is when their mortgage company fails to calculate the balance on the account correctly. We have seen this happen because a mortgage company is wrongfully paying for homeowner's insurance when the homeowner has their own policy. It can also occur when payments made during bankruptcy are held in suspense and not applied. Other times after a homeowner obtains a modification they fail to update the system with the new terms.
The first step when discovering miscalculations on a mortgage is to send what is called a Qualified Written Request or QWR. The back of most mortgage statements will indicate the address as to where a QWR should be sent. In your QWR you should include the nature of the dispute and any documents that show your calculations are correct.
The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. Sec. 2601 sets forth the requirements a mortgage servicer must follow after receiving a QWR. After the mortgage company receives the QWR they must acknowledge your letter within five days. 12 U.S.C. Sec. 2605(e)(1)(A). They must then conduct an investigation and make appropriate corrections on your account. 12 U.S.C. Sec. 2605(e)(2). If your mortgage service has not complied with any of these provisions of RESPA you can file a claim against them.
We provide a free initial telephone or email consultation to all potential clients. If we decide to represent you we will provide a written fee agreement.
If we are filing a lawsuit on your behalf we usually will represent you on a contingency basis. This means that you do not pay us legal fees unless we recover money from the other side. Our fees are then taken out of the recovery.
If we are defending you in a lawsuit we usually represent you for a small retainer fee upfront and a small fee due at the end of the representation.
National Association of Consumer Advocates:
The State Bar of California:
San Diego County Bar Association:
San Diego Court Website
California Court Forms
The good lawyer is not the man who has an eye to every side and angle of contingency and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.
– Ralph Waldo Emerson
Injustice anywhere is threat to justice everywhere. –Martin Luther King, Jr.
But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, …That institution, gentlemen, is a court…in this country our courts are the great levelers, and in our courts all men are created equal. -Atticus Finch, “To Kill a Mockingbird”
Los abogados de Golden & Cardona-Loya, LLP estan dedicados a asistir individuos con problemas de sus financias, incluyendo deudas, prestamos, e hipotecas. Tambien estamos dedicados a ayudar a nuestros clientes con otros aspectos legales como inmigración. Por favor llamenos por una consulta gratis.