Hot cases in Debt Collection and Credit Repair Hi, welcome to the Attorney and Credit Repair Expert show. I’m your host, Gary Nitzkin, I’m a lawyer with freecreditlawyer.com. In any event we fix credit bureaus and debt collectors that screw with people or their credit. We’re the muscle for credit repair pro such as yourself. On today’s show I want to talk about some recently issued court opinions that give us credit repair pros new things to look for in dispute on credit reports. Let’s get to it, today is Sunday, April 15, 2018. Instead of freezing myself in Michigan, I’m working from Arizona. It’s sunny and beautiful, I’m sipping on my cup of tea, I read some really cool cases, and I found a few that really struck me, and I wanted to share these with you. Let’s get started, the first one I want to talk about answers the question, when does a demand letter that demands a payment on the time-barred debt, violate the fair debt collection practices act? The case of Tatis versus Allied Interstate, an opinion handed down in February of just this year by the Third Circuit answered that question. This case will be in the show notes at freecreditlawyer.com. Let’s talk about this, first of all a lot of people are confused thinking that just because a debt is unenforceable due to the statute of limitations, that it can’t be collected, that’s not true. A debt that’s older than the statute of limitations cannot be enforced in a court action, but that doesn’t mean that the debt no longer exists, and that the creditor doesn’t have a right to ask for payment of the debt. In theory, believe it or not, a creditor can ask for payment on a debt for the rest of your life. Once you have this concept clear that an unenforceable debt does not mean that the debt goes away, we’re ready to talk more about this case. Let’s do it, under the FDCPA it’s illegal for a debt collector to make false or misleading representations in connection with the collection of a debt. Moreover, a debt collector may not threaten to take action that it doesn’t have the present right and intention to take. These are both different sections of the FDCPA, but they’re relevant for our discussion. In the Tatis case the plaintiff incurred a $1200 debt from [inaudible 00:02:43] over 10 years ago. Clearly it’s outside the statute of limitations for enforcement, still the debt collector sent the plaintiff a demand letter. We call it a G letter in our office, because that’s the provision of the FDCPA that requires the letter. Let me read to you what one provision of the letter said, it stated, “The creditor is willing to accept payment in the amount of the $128 in settlement of this debt. You could take advantage of the settlement offer, receive your payment on this amount, or make any other mutually agreeable payment arrangement within 40 days.” One more thing you need to know, is that in all cases under the FDCPA, they’re reviewed from the perspective of the least sophisticated consumer. All right, getting back to our story, in short any debt collector who uses the phrase settlement or settlement offer when attempting to collect a time-barred debt, may be violating the law, because the collector can easily confuse the least sophisticated consumer into believing a court case might be filed, or has been filed against them. Some courts went as far as to look up the word settlement from various sources such as Wikipedia, online dictionaries, and the one thing they found in common, is that when you use the word settlement, it implies court action, or the avoidance of court proceedings. As it turns, a number of courts have actually looked at this issue in the last few years and have come on board with the idea that when a debt collector uses the term settlement or settlement offer in connection with a time-barred debt, that letter could be misleading. One court however has said, “Look, just because those words appear in a letter doesn’t necessarily mean that it violates the FDCPA,” but as credit repair pros, and the credit repair pros that we are, it’s something we need to look at. These are cases that I’ve gone to bat for several times for consumers, and we’ve won these cases. Here’s the moral of the story, if your client receives a demand letter on an unenforceable debt that mentions the word settlement, or settlement demand, or settlement offer, your client may very well have an FDCPA action against the debt collector. Send us the letter, we’re happy to look at it for free, and I’m happy to give you my opinion. The second case that impressed me today is a reminder that big banks are still screwing the consuming public. Many of us are lulled into complacency thinking that the big banks have a lot of money, and because they retain big time attorneys, it’s impossible for them to break the law, or at least be found guilty of breaking the law. I’m here to tell you that, that’s not true. Wake up, what was it? Just last year or the year before when Wells Fargo was opening up accounts in people’s names without their permission. Well we’ve got a new lawbreaker here today, Credit One Bank. It seems that our friends at Credit One Bank opened up a card for Mr. Anderson, yeah, yeah, please spare me the Matrix jokes. After a few years Mr. Anderson became delinquent with his Credit One Bank credit card, and so the bank reported it as a charge-off and closed. No problem, that’s accurate reporting. Credit One Bank eventually sold Anderson’s account to a third party debt buyer. However, Anderson subsequently filed for Chapter 7 bankruptcy, and he got a discharge in that bankruptcy as well. He then reached back to Credit One Bank, sent them a letter, and said, “Look, I filed for bankruptcy, and I’d like you to change the charge-off notation on my account, the trade line you reported about me to include it in bankruptcy.” The bank refused, boy that was a big mistake. Anderson’s attorneys have filed a class action against Credit One Bank, because instead of updating the account to as included in bankruptcy, they decided to keep the charge-off notation. What’s the difference you may ask? Well an account that’s charged-off may still be collected by a subsequent debt collector. Compare that to an account that’s reported as included in bankruptcy, or discharged in bankruptcy, and in the public record section of the client’s credit report it says, “There’s a discharge in bankruptcy.” That debt is no longer collectible. It makes a big difference if someone’s looking at the credit report, because they’ll either know that the debt is discharged, or they’ll think it’s still collectible, it’s confusing. In any event, I’ve got to tell you, I agree with Anderson, I think he’s absolutely correct. I think this case highlights for us as credit repair pros, a new to cleanup credit reports of consumer’s who receive discharges in bankruptcy. You not only want to make sure that the third party debt buyer, or the debt collector that’s reporting the debt, is reporting that the debt is discharged, but you want to go back to the original seller, or the client of the debt collector and have them report the account also as included in bankruptcy. The third case I want to talk about is also pretty interesting. I get this question a lot, what constitutes proper validation of a debt by a debt collector? Well the Second Circuit weighed in on this issue recently in the case of Walton versus EOS CCA. Again this case will be available in the show notes at freecreditlawyer.com. It appears that Mr. Walton owed a debt to AT&amp;T. AT&amp;T turned it over to its debt collector, EOS. It sent to the plaintiff, Ms. Walton, a demand letter for $268, but with the incorrect account number. In any event, Walton knew she owed the debt, but still on this basis she sent the demand for verification to EOS. Now, just to be clear for those of you that aren’t very familiar with the fair debt collection practices act, a consumer is allowed to demand and receive verification of a debt within 30 days of receiving the debt collectors demand letter. In fact, once the debt collector receives the consumer’s demand for verification, the debt collector’s not allowed to take any other collection action until it provides verification of that debt. Yes, that includes credit reporting activities. Come back with me to the Walton case for a second. We have Ms. Walton who sent the demand for verification, and EOS who is the debt collector, merely looked at its own records and the information that it had been previously sent by AT&amp;T, and compared Ms. Walton’s name, address, and Social Security number, and told her, “We have verified that it’s you.” Walton said that, that’s not sufficient verification. She wanted EOS to actually pick up a phone, or somehow contact AT&amp;T to verify the debt. The Second Circuit said, “No, that’s neither reasonable nor feasible.” The court concluded that EOS’s verification of the debt by merely checking it’s all records, was sufficient to satisfy the verification requirement under the FDCPA. Here’s one problem with that statute, I know there are many problems, but one problem with the FDCPA, is it doesn’t define what is meant by verification. The FDCPA is silent about why … FDCPA is silent about what is meant by verification. What this means for us as credit repair professionals, is that really only in the most extreme cases can we make an issue out of a debt collector not verifying a debt. A for instance, in our office we sent a demand for verification to a debt collector who very candidly responded to us they had no information with which to verify the debt. While I respect their candor, I gotta tell you, they had better not contact my client again in connection with the collection of that debt, because until they provide verification, they’re barred from collecting it. If they never verify it, they never have the opportunity to collect it. The last case I want to talk about is this holding from the Second Circuit called Taylor versus Financial Recovery Services. Ms. Taylor was pursued for a credit card balance, the debt collector sent a letter saying she owed $600, but the letter did not say whether the balance would continue to accrue interest and fees. Interestingly, on a credit card debt as you well know, if you don’t make your monthly payment, guess what you accrue every month? Interest and fees, but this letter didn’t say anything. Also, unknown to Ms. Taylor, the creditor bank told the debt collector, “Don’t accrue any more interest or fees, just get us the $600 and let’s be done.” Well Ms. Taylor took exception to that and said, “No, the letter was confusing and misleading, because I didn’t know if interest and fees continued to accrue.” She didn’t know that if she paid the $600 she would be done. The Second Circuit didn’t agree with her, the Second Circuit court said, “Look, you got a demand letter for $600, all you had to do is pay that $600 and you would have been done.” She pointed to another case that, that very court had adjudicated some time earlier. That previous case in a very similar fact pattern. The court answered the question whether a demand letter that in fact accrues interests and fees but doesn’t state it is misleading. The court said, “Yes, in that case it is very misleading,” especially since in that case, that subsequent case interest continued to accrue at a staggering 500%. Anyways this is a very exciting area of law and I love doing it. I focus only on fair debt collection practices act cases when people get screwed over by debt collectors. When they get screwed over by banks and credit reporting agencies, which is why we do fair credit reporting act work as well. It’s my goal and mission to not only help consumers, but to help credit repair professionals such as you up their game. I want you to know more, I want you to do better, and I want to help you practice ethically, so you can help as many people as possible. The credit reporting agencies have it in for you, and a lot of government agencies have it in for you as credit repair pros. Don’t let them push you, if you practice ethically and honestly, and you know the law, no one’s going to push you around. I won’t let them, in any event thank you for listening, and I’ll talk to you in a couple of weeks..fusion-body .fusion-builder-column-0{width:100% !important;margin-top : 0px;margin-bottom : 20px;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 0px;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 0px;}@media only screen and (max-width:1024px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {margin-right : 0px;margin-left : 0px;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {margin-right : 0px;margin-left : 0px;}}.fusion-body .fusion-flex-container.fusion-builder-row-1{ padding-top : 0px;margin-top : 0px;padding-right : 0px;padding-bottom : 0px;margin-bottom : 0px;padding-left : 0px;}The post Hot cases in Debt Collection and Credit Repair appeared first on CRO's.

<h1>Hot cases in Debt Collection and Credit Repair</h1> Hi, welcome to the Attorney and Credit Repair Expert show. I’m your host, Gary Nitzkin, I’m a lawyer with <a href="http://freecreditlawyer.com" rel="nofollow" target="_blank">freecreditlawyer.com</a>. In any event we fix credit bureaus and debt collectors that screw with people or their credit. We’re the muscle for credit repair pro such as yourself. On today’s show I want to talk about some recently issued court opinions that give us credit repair pros new things to look for in dispute on credit reports. Let’s get to it, today is Sunday, April 15, 2018. Instead of freezing myself in Michigan, I’m working from Arizona. It’s sunny and beautiful, I’m sipping on my cup of tea, I read some really cool cases, and I found a few that really struck me, and I wanted to share these with you. Let’s get started, the first one I want to talk about answers the question, when does a demand letter that demands a payment on the time-barred debt, violate the fair debt collection practices act? The case of Tatis versus Allied Interstate, an opinion handed down in February of just this year by the Third Circuit answered that question. This case will be in the show notes at <a href="http://freecreditlawyer.com" rel="nofollow" target="_blank">freecreditlawyer.com</a>. Let’s talk about this, first of all a lot of people are confused thinking that just because a debt is unenforceable due to the statute of limitations, that it can’t be collected, that’s not true. A debt that’s older than the statute of limitations cannot be enforced in a court action, but that doesn’t mean that the debt no longer exists, and that the creditor doesn’t have a right to ask for payment of the debt. In theory, believe it or not, a creditor can ask for payment on a debt for the rest of your life. Once you have this concept clear that an unenforceable debt does not mean that the debt goes away, we’re ready to talk more about this case. Let’s do it, under the FDCPA it’s illegal for a debt collector to make false or misleading representations in connection with the collection of a debt. Moreover, a debt collector may not threaten to take action that it doesn’t have the present right and intention to take. These are both different sections of the FDCPA, but they’re relevant for our discussion. In the Tatis case the plaintiff incurred a $1200 debt from [inaudible 00:02:43] over 10 years ago. Clearly it’s outside the statute of limitations for enforcement, still the debt collector sent the plaintiff a demand letter. We call it a G letter in our office, because that’s the provision of the FDCPA that requires the letter. Let me read to you what one provision of the letter said, it stated, “The creditor is willing to accept payment in the amount of the $128 in settlement of this debt. You could take advantage of the settlement offer, receive your payment on this amount, or make any other mutually agreeable payment arrangement within 40 days.” One more thing you need to know, is that in all cases under the FDCPA, they’re reviewed from the perspective of the least sophisticated consumer. All right, getting back to our story, in short any debt collector who uses the phrase settlement or settlement offer when attempting to collect a time-barred debt, may be violating the law, because the collector can easily confuse the least sophisticated consumer into believing a court case might be filed, or has been filed against them. Some courts went as far as to look up the word settlement from various sources such as Wikipedia, online dictionaries, and the one thing they found in common, is that when you use the word settlement, it implies court action, or the avoidance of court proceedings. As it turns, a number of courts have actually looked at this issue in the last few years and have come on board with the idea that when a debt collector uses the term settlement or settlement offer in connection with a time-barred debt, that letter could be misleading. One court however has said, “Look, just because those words appear in a letter doesn’t necessarily mean that it violates the FDCPA,” but as credit repair pros, and the credit repair pros that we are, it’s something we need to look at. These are cases that I’ve gone to bat for several times for consumers, and we’ve won these cases. Here’s the moral of the story, if your client receives a demand letter on an unenforceable debt that mentions the word settlement, or settlement demand, or settlement offer, your client may very well have an FDCPA action against the debt collector. Send us the letter, we’re happy to look at it for free, and I’m happy to give you my opinion. The second case that impressed me today is a reminder that big banks are still screwing the consuming public. Many of us are lulled into complacency thinking that the big banks have a lot of money, and because they retain big time attorneys, it’s impossible for them to break the law, or at least be found guilty of breaking the law. I’m here to tell you that, that’s not true. Wake up, what was it? Just last year or the year before when Wells Fargo was opening up accounts in people’s names without their permission. Well we’ve got a new lawbreaker here today, Credit One Bank. It seems that our friends at Credit One Bank opened up a card for Mr. Anderson, yeah, yeah, please spare me the Matrix jokes. After a few years Mr. Anderson became delinquent with his Credit One Bank credit card, and so the bank reported it as a charge-off and closed. No problem, that’s accurate reporting. Credit One Bank eventually sold Anderson’s account to a third party debt buyer. However, Anderson subsequently filed for Chapter 7 bankruptcy, and he got a discharge in that bankruptcy as well. He then reached back to Credit One Bank, sent them a letter, and said, “Look, I filed for bankruptcy, and I’d like you to change the charge-off notation on my account, the trade line you reported about me to include it in bankruptcy.” The bank refused, boy that was a big mistake. Anderson’s attorneys have filed a class action against Credit One Bank, because instead of updating the account to as included in bankruptcy, they decided to keep the charge-off notation. What’s the difference you may ask? Well an account that’s charged-off may still be collected by a subsequent debt collector. Compare that to an account that’s reported as included in bankruptcy, or discharged in bankruptcy, and in the public record section of the client’s credit report it says, “There’s a discharge in bankruptcy.” That debt is no longer collectible. It makes a big difference if someone’s looking at the credit report, because they’ll either know that the debt is discharged, or they’ll think it’s still collectible, it’s confusing. In any event, I’ve got to tell you, I agree with Anderson, I think he’s absolutely correct. I think this case highlights for us as credit repair pros, a new to cleanup credit reports of consumer’s who receive discharges in bankruptcy. You not only want to make sure that the third party debt buyer, or the debt collector that’s reporting the debt, is reporting that the debt is discharged, but you want to go back to the original seller, or the client of the debt collector and have them report the account also as included in bankruptcy. The third case I want to talk about is also pretty interesting. I get this question a lot, what constitutes proper validation of a debt by a debt collector? Well the Second Circuit weighed in on this issue recently in the case of Walton versus EOS CCA. Again this case will be available in the show notes at <a href="http://freecreditlawyer.com" rel="nofollow" target="_blank">freecreditlawyer.com</a>. It appears that Mr. Walton owed a debt to AT&amp;T. AT&amp;T turned it over to its debt collector, EOS. It sent to the plaintiff, Ms. Walton, a demand letter for $268, but with the incorrect account number. In any event, Walton knew she owed the debt, but still on this basis she sent the demand for verification to EOS. Now, just to be clear for those of you that aren’t very familiar with the fair debt collection practices act, a consumer is allowed to demand and receive verification of a debt within 30 days of receiving the debt collectors demand letter. In fact, once the debt collector receives the consumer’s demand for verification, the debt collector’s not allowed to take any other collection action until it provides verification of that debt. Yes, that includes credit reporting activities. Come back with me to the Walton case for a second. We have Ms. Walton who sent the demand for verification, and EOS who is the debt collector, merely looked at its own records and the information that it had been previously sent by AT&amp;T, and compared Ms. Walton’s name, address, and Social Security number, and told her, “We have verified that it’s you.” Walton said that, that’s not sufficient verification. She wanted EOS to actually pick up a phone, or somehow contact AT&amp;T to verify the debt. The Second Circuit said, “No, that’s neither reasonable nor feasible.” The court concluded that EOS’s verification of the debt by merely checking it’s all records, was sufficient to satisfy the verification requirement under the FDCPA. Here’s one problem with that statute, I know there are many problems, but one problem with the FDCPA, is it doesn’t define what is meant by verification. The FDCPA is silent about why … FDCPA is silent about what is meant by verification. What this means for us as credit repair professionals, is that really only in the most extreme cases can we make an issue out of a debt collector not verifying a debt. A for instance, in our office we sent a demand for verification to a debt collector who very candidly responded to us they had no information with which to verify the debt. While I respect their candor, I gotta tell you, they had better not contact my client again in connection with the collection of that debt, because until they provide verification, they’re barred from collecting it. If they never verify it, they never have the opportunity to collect it. The last case I want to talk about is this holding from the Second Circuit called Taylor versus Financial Recovery Services. Ms. Taylor was pursued for a credit card balance, the debt collector sent a letter saying she owed $600, but the letter did not say whether the balance would continue to accrue interest and fees. Interestingly, on a credit card debt as you well know, if you don’t make your monthly payment, guess what you accrue every month? Interest and fees, but this letter didn’t say anything. Also, unknown to Ms. Taylor, the creditor bank told the debt collector, “Don’t accrue any more interest or fees, just get us the $600 and let’s be done.” Well Ms. Taylor took exception to that and said, “No, the letter was confusing and misleading, because I didn’t know if interest and fees continued to accrue.” She didn’t know that if she paid the $600 she would be done. The Second Circuit didn’t agree with her, the Second Circuit court said, “Look, you got a demand letter for $600, all you had to do is pay that $600 and you would have been done.” She pointed to another case that, that very court had adjudicated some time earlier. That previous case in a very similar fact pattern. The court answered the question whether a demand letter that in fact accrues interests and fees but doesn’t state it is misleading. The court said, “Yes, in that case it is very misleading,” especially since in that case, that subsequent case interest continued to accrue at a staggering 500%. Anyways this is a very exciting area of law and I love doing it. I focus only on fair debt collection practices act cases when people get screwed over by debt collectors. When they get screwed over by banks and credit reporting agencies, which is why we do fair credit reporting act work as well. It’s my goal and mission to not only help consumers, but to help credit repair professionals such as you up their game. I want you to know more, I want you to do better, and I want to help you practice ethically, so you can help as many people as possible. The credit reporting agencies have it in for you, and a lot of government agencies have it in for you as credit repair pros. Don’t let them push you, if you practice ethically and honestly, and you know the law, no one’s going to push you around. I won’t let them, in any event thank you for listening, and I’ll talk to you in a couple of weeks..fusion-body .fusion-builder-column-0{width:100% !important;margin-top : 0px;margin-bottom : 20px;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 0px;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 0px;}@media only screen and (max-width:1024px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {margin-right : 0px;margin-left : 0px;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-0{width:100% !important;}.fusion-builder-column-0 &gt; .fusion-column-wrapper {margin-right : 0px;margin-left : 0px;}}.fusion-body .fusion-flex-container.fusion-builder-row-1{ padding-top : 0px;margin-top : 0px;padding-right : 0px;padding-bottom : 0px;margin-bottom : 0px;padding-left : 0px;} The post <a href="https://freecreditlawyer.com/podcasts-for-credit-professionals/hot-cases-in-debt-collection-and-credit-repair/" rel="nofollow" target="_blank">Hot cases in Debt Collection and Credit Repair</a> appeared first on <a href="https://freecreditlawyer.com" rel="nofollow" target="_blank">CRO's</a>.

Hot cases in Debt Collection and Credit Repair

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