Debt Settlement

Published on: May 17, 2018

How Do You Know Whether a Debt Collector’s Calls are Harassment?

How much is too much? Unfortunately, the Fair Debt Collection Practices Act and its Florida counterpart do not specify a particular number of calls per day that a creditor can make when trying to collect a debt.

An older Florida case is somewhat illustrative in finding the answer. In Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977), the Court looked at what conduct was considered harassing, such as: a) the frequency of the creditor’s calls; b) the number of calls; c) the time of day when calls were received (whether during normal business hours); and d) whether the purpose of the calls was appropriate, such as calling to i) remind the debtor of the debt; ii) determine the reasons for non-payment; iii) discuss a plan for making payments.

My rule of thumb that I like to use is if a creditor calls in the morning and talks with you, and then calls again the same day, that only works if you said something like I may get paid at lunchtime and might have some money for you. Otherwise, I doubt that anything changed that day and there was no reasonable reason for a second call the same day other than to harass you.

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Published on: August 15, 2016

When Debt Collectors Break Bad (I so miss that show)

By Christie D. Arkovich, P.A.

Useful information can be obtained from the Consent Orders relating to improper debt collection activities obtained by the Consumer Financial Protection Bureau. Recent orders applicable to Fred Hanna, Encore Capital Group, Inc., Midland Funding, LLC, Midland Credit Management, Inc., Asset Acceptance Capital Corp., PRA, LLC, Porfolio Recovery Associates, Chase Bankcard Services, Santander Bank, N.A., Solomon & Solomon P.C., Westlake and Wilshire etc. can be found here on the CFPB site. (searchable filters).

Debt collectors are not permitted to provide false or deceptive information to you in their attempts to collect a debt. This may include the things they can do to you if you do not pay (such as take your home, sue you etc.). This may include who they are affiliated with. We are evaluating a case right now where the debt collector is private company. But they’ve told my client that they are the Department of Education. This is contrary to their website which we noted states no affiliation with the DOE. Basically, our marching orders are if what they say is not the whole truth and nothing but the truth, they run the risk of violating the law. This means if they try to explain your options, but leave perhaps the best one out – this would be a violation of the FDCPA, FCCPA and perhaps even unlicensed practice of law. All these consumer law violations give us excellent leverage to negotiate lower balances, better payment plans and sometimes even a write off of the entire debt.

This applies to all consumer debt. Auto finance, second mortgages, credit cards, signature loans and best of all student loan debt. When we are hired to settle any kind of debt we first take the time to educate our client on their consumer rights, what kinds of behavior can lead to violations and we have them document any phone calls they are receiving. Then we use all this to settle the debt.

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Published on: August 5, 2016

Florida Statute of Limitations on Credit Card Lawsuits

By Christie D. Arkovich, P.A.

If a creditor waits too long to sue, the creditor can be barred from ever bringing suit. The purpose of having a statute of limitations is so that lawsuits are brought when the matter is still fresh: before documents are destroyed and memories fade. If they can no longer bring a lawsuit, then there is no way to legally enforce the debt. Each state has their own laws as to how long the statute of limitations is and it varies tremendously by state and also by the type of action. In Florida, the statute lasts five years for a written contract and four years for a credit card account. While this seems simple, it is often amazingly difficult for a lay person to analyze because a contract may provide that a different state law applies, even a state that neither party has anything to do with. The answer may also vary depending upon whether it is a procedural or substantive question of law or how complete the writing was. The Florida Statute of Limitations on this is contained in Section 95.11:

Actions other than for recovery of real property shall be commenced as follows:

(2) Within five years.–

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Published on: July 16, 2016

Are You Being Sued By A Debt Buyer? (credit cards, car loans and private student loans)

By Christie D. Arkovich, P.A.

Have you just learned you’re being sued by one of these companies?

National Collegiate Student Loan Trust
CACH LLC

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Published on: April 7, 2016

Getting a Debt Buyer Lawsuit Dismissed

By Christie D. Arkovich, P.A.

How many consumers are sued every day by a debt buyer they’ve never heard from in the past? This is extremely common and presents an excellent defense for those knowledgeable enough to use it.

One of the best tools we have as a consumer lawyer fighting collection actions brought by companies such as Cach, Asset Acceptance, Sherman Financial Group etc. is Florida Statute Section 559.715. It requires notification of any assignment of the right to bill and collect the debt be given to the consumer prior to filing a lawsuit in an attempt to collect the debt. It acts as a condition precedent to filing suit and requires a case to be dismissed if properly asserted.

A case we had last week is a perfect example. Our client was sued by Cach LLC for an old credit card debt and she represented herself for two years. Not much was done other than an answer was filed. However, the debt buyer recently started working on the file again and a motion for summary judgment was filed. Our client hired us in February of this year to fight that MFSJ. Once we reviewed the file, we determined that we could file our own Motion for Summary Judgment for failure of the debt buyer to send the notice required by Florida Statute Section 559.715. We did and we won. Case dismissed. The Plaintiff’s Motion for Summary Judgment hearing already set a couple weeks later was removed from the calendar as the case was now over. The statute of limitations was still open for the debt buyer to re-file for a few more months. So we next offered to waive our entitlement to attorney’s fees in exchange for the debt buyer releasing their claims against my client. They agreed. Problem solved. No low hanging fruit here Cach decided and they moved on.

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Published on: September 4, 2013

Consumers have a Right to Prevent Robocalls! A Florida Law Firm Uses the TCPA to Settle Debts.

By Christie D. Arkovich, P.A.

A three judge panel federal court ruled recently against Dell Computer when Dell continued to use an automated dialing system to make debt collection calls to a consumer. This consumer had written Dell asking it to stop calling her cell phone. Dell ignored the letter.

The 3rd Circuit Court of Appeals in Philadelphia ruled that although the consumer had initially listed her cell phone number on her application for credit, she later revoked the consent to call her on that cell phone. This case is likely to have far reaching implications including as far away as Florida because it is a federal court and believed to be one of the first to consider this issue.

The debt collector unsuccessfully argued that the consumer did not have a right to revoke consent. Once given, it argued Dell could call and call, and then call some more. It couldn’t have been more wrong.

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Published on: September 1, 2012

I’ve just been served, what do I do?

By Christie D. Arkovich, P.A.

In Florida, typically someone who is sued is served with the lawsuit and given 20 or sometimes 30 days to file a response. If the lawsuit was filed in small claims court, you are given a date to appear at a pretrial conference instead of filing a written response.

The most important thing is: Don’t ignore the deadline. It doesn’t matter that you think you might be able to work it out or that you called the attorney’s office who filed the lawsuit. If you don’t file a timely written response with the court, or attend the pretrial conference, a default will be entered against you. A default judgment can last up to 20 years in Florida and is very hard to challenge.

Before the deadline expires, please see an attorney. Many attorneys, including our office offer a free consultation for foreclosure defense or debt collection matters.

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Published on: June 14, 2012

Principal Reductions are Happening: Don’t Give Up if You Want to Keep Your House

By Christie D. Arkovich, P.A.

house money.jpg Here’s an example in Tampa, Florida this month for one of our foreclosure clients who wanted to keep her house and avoid the possibility of a deficiency judgment:

New monthly payment: $933.45 with escrow Old monthly payment: $1,491.35

New interest rate: 4% fixed Old interest rate: 7.75 % fixed

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Published on: March 9, 2012

1099C Debt Cancellation: Tampa Florida Channel 13 Interviews Attorney Christie Arkovich

By Christie D. Arkovich, P.A.

Creditors are busily sending out more 1099C’s then ever before according to a story by Jeremy Campbell of Channel 13 in Tampa, Florida this week. The news story “How the IRS taxes debt” explains that debt settlements while good, come with a penalty. Consumers are taxed on the forgiven debt sometimes months or years after the settlement. More than 6 million consumers are expected to receive 1099C’s this year, double last year.

One important point that the story did not address. Cancelled debt is not taxed in a bankruptcy. Just saying.

Published on: February 21, 2012

Debt Settlement vs. Bankruptcy

By Christie D. Arkovich, P.A.

I often sit with my clients in Tampa, Florida and perform a simple test: I make two columns on a piece of paper and list the pros and cons of filing bankruptcy versus trying to settle their debt.

More often than not, the bankruptcy column has many more pros, while the debt settlement column has more cons. For instance, in a Chapter 13, the monthly payment is usually much less. In a Chapter 7, the monthly payment is zero if there is no disposable income.

Debt settlement on the other hand usually requires the client have lump sum amounts available to offer to get any kind of substantial reduction. So they have to save up. The client has to reach satisfactory agreements with each creditor, or they still have leftover debt. Finally, in debt settlements the cancelled debt is taxable by the IRS. Not so in bankruptcy.

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