Blog: Protecting Consumer Rightshttp://www.protectingconsumerrights.com/blog/rss/Protecting Consumer Rights - Know Your RightsFair Debt Collectionhttp://www.protectingconsumerrights.com/blog/2011/6/17/fair-debt-collection/In these tough economic times it has become common practice for creditors to turn unpaid bills over to debt collection agencies. These agencies begin calling and sending letters to collect the amount owed; often the calls are frequent, frightening and threatening. It is bad enough to know that you have outstanding bills, but the menacing nature of a bill collector's calls can leave you feeling frustrated and helpless.

Unfortunately if you are in this situation, where you are late on paying your bills, you are not alone, and you do have rights. The Fair Debt Collection Practices Act (FDCPA) is a statute that outlaws numerous unfair debt collection practices and provides a framework for verifying the debt and ending calls.

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.

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Fri, 17 Jun 2011 08:16:32 GMThttp://www.protectingconsumerrights.com/blog/2011/6/17/fair-debt-collection/
How to Dispute Inaccurate Information on Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2011/6/17/how-to-dispute-inaccurate-information-on-your-credit-report/Credit reporting agencies, or what are commonly known as credit bureaus, including Trans Union, Equifax and Experian, have from time to time been known to report inaccurate information on credit reports. Inaccurate information can lead to a loss of credit by either a denied application, or by a current creditor closing or reducing a line of credit. The Fair Credit Reporting Act (FCRA) gives consumers the right to request an investigation into the inaccuracy.

In order to open up an investigation, you will need to show proof that there is an error on your credit report in the form of payment of a bill, a letter from your creditor, or proper identification if any of the information contained in the report does not belong to you. In the case of identity theft, you will likely be asked to produce a police report.

The next step will be to write a letter directly to the credit reporting agencies, disputing the incorrect items on your report. While each credit reporting agency has its own on-line dispute process, you may want to reconsider using it as it is very limiting in what you can say and how you can use it to dispute inaccuracies.

Your dispute should be written out and mailed to the three major credit reporting agencies: Trans Union, Equifax and Experian. Be sure to follow-up by sending a copy to any creditor listed on your report that you claim is reporting inaccurately. The FCRA mandates that any credit reporting agency that receives your dispute must investigate and promptly notify any creditors about whom you are complaining, in order to enlist them in the investigation. Credit bureaus have a duty under the FCRA to conduct an investigation to verify your claims; the investigation process can take no longer than 30 days and you will receive a response in the mail.

If any company fails to reasonably investigate your dispute within the allotted time frame, you could be entitled to monetary damages. 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 covered. The good news is that if you do find an error on your credit report, the credit bureaus agencies can be held accountable if they have reported inaccurate information on credit reports.

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Fri, 17 Jun 2011 08:18:04 GMThttp://www.protectingconsumerrights.com/blog/2011/6/17/how-to-dispute-inaccurate-information-on-your-credit-report/
Who Can Look at Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2011/6/17/who-can-look-at-your-credit-report/We often hear that the higher your credit score is the more credit you can obtain, and the lower your interest rate will be while the lower your credit score is the higher your interest rate will be. But who has access to your report and who protects your privacy?

Many Americans consider their credit information to be private information, and it should be. The amount of money you owe or how much you spend doesn't need to be available to the general public or even to companies with whom you no longer have a relationship. As a consumer you are entitled to protection of that information under the Fair Credit Reporting Act (FCRA). Because of the FCRA, not everyone who wants to view your credit report can, and to a great extent, your permission is required.

If you apply for credit or discuss credit terms with a potential credit grantor, or an insurance company then that company does have the right to check your credit report. In addition, once you have established a credit relationship with a company, they are entitled to routinely check your report to assure that you maintain financial health while your account is open. When you check your own credit report you will see a couple of different views;

  • 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.

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Fri, 17 Jun 2011 08:20:34 GMThttp://www.protectingconsumerrights.com/blog/2011/6/17/who-can-look-at-your-credit-report/
What Do I do Nowhttp://www.protectingconsumerrights.com/blog/2011/6/21/what-do-i-do-now/In these unsettled economic times you cannot help but hear about the variety of scams inflicted upon people who are in debt because of unemployment or mortgage debt. Scammers offer fixes that are too good to be true or try to confuse you into giving them personal information in order to assist you. One recent scam concerns collectors of supposed old pay day loans who call and use extremely aggressive tactics to collect a debt. There are stories of threats of jail or immediate lawsuits, demands of immediate payment for the full amount as well as instances of calls to friends, family or your job. Often these scam artists will be secretive about their company name; if they do give a company name, often times they make it sound like it is some kind of government agency - my favorite is National Fraud Affidavit. So what do you when someone calls you promising to fix your financial troubles?

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. 

 

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Tue, 21 Jun 2011 10:52:17 GMThttp://www.protectingconsumerrights.com/blog/2011/6/21/what-do-i-do-now/
Credit Cards and College Studentshttp://www.protectingconsumerrights.com/blog/2011/7/12/credit-cards-and-college-students/As you get ready to send your child off to college for the first time or as a returning student, you may be thinking, "Should I send them with a credit card?" Credit cards can be a plus and a minus; they are a convenient way for your child to have the means to support their financial needs, be it books and supplies, or food and entertainment. The minus is that they can go overboard with spending.

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.

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Tue, 12 Jul 2011 19:57:47 GMThttp://www.protectingconsumerrights.com/blog/2011/7/12/credit-cards-and-college-students/
Auto Fraudhttp://www.protectingconsumerrights.com/blog/2011/7/13/auto-fraud/ Have you been lured into purchasing a particular automobile by the sales pitch of the salesman? It is not uncommon for a car salesperson to misrepresent a particular product, or hide information about the product, in order to induce you to buy; in doing so your rights may have been violated. 

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.

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Wed, 13 Jul 2011 10:08:32 GMThttp://www.protectingconsumerrights.com/blog/2011/7/13/auto-fraud/
EXTENDED WARRANTIES – SHOULD I BUY ONE FOR MY CAR?http://www.protectingconsumerrights.com/blog/2011/7/13/extended-warranties-–-should-i-buy-one-for-my-car/It is not uncommon for a potential used or new car buyer to ask whether purchasing an extended warranty is a good idea. It is important to understand the details of what you are purchasing when it comes to an extended warranty.

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. 

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Wed, 13 Jul 2011 10:48:45 GMThttp://www.protectingconsumerrights.com/blog/2011/7/13/extended-warranties-–-should-i-buy-one-for-my-car/
Debt Collection and Social Mediahttp://www.protectingconsumerrights.com/blog/2011/8/10/debt-collection-and-social-media/Debt collectors have added social media to their collection process.  Collectors can use social media to locate people or see if they have any assets.  Some collectors use social media to harass someone.  Examples include posting messages that let the world know you owe a debt or contact friends and family.  These are clear violations of the Fair Debt Collection Practices Act.

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/

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Wed, 10 Aug 2011 17:09:28 GMThttp://www.protectingconsumerrights.com/blog/2011/8/10/debt-collection-and-social-media/
FCRA & Social Media: Important Information For Employers and Job Seekershttp://www.protectingconsumerrights.com/blog/2011/9/7/fcra-social-media-important-information-for-employers-and-job-seekers/The Federal Trade Commission staff looked at a company selling background reports that include information derived from social media to see if they complied with the FCRA. The companies selling such reports have to comply that information derived from social media must comply with the FCRA. This means that the have to provide copies of the report to the people and a process in place to dispute errors. Also companies selling these background reports to employers must certify that the reports will not be used to violate federal or state equal employment opportunities laws.

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

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Wed, 07 Sep 2011 12:34:50 GMThttp://www.protectingconsumerrights.com/blog/2011/9/7/fcra-social-media-important-information-for-employers-and-job-seekers/
Children’s Identity Theft On The Risehttp://www.protectingconsumerrights.com/blog/2011/9/6/children’s-identity-theft-on-the-rise/Why are children's identity being stolen?

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 

 

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Tue, 06 Sep 2011 13:39:05 GMThttp://www.protectingconsumerrights.com/blog/2011/9/6/children’s-identity-theft-on-the-rise/
About Convergent Healthcare Recovery - Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/6/7/about-convergent-healthcare-recovery-debt-collector/About Convergent Healthcare Recovery
Convergent is one of the largest companies in the debt collection industry.  They were founded in 1998.  They have more than 2600 employees in t in 10 states including Texas, New York, Georgia, Alabama and Florida.

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.

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Thu, 07 Jun 2012 11:58:24 GMThttp://www.protectingconsumerrights.com/blog/2012/6/7/about-convergent-healthcare-recovery-debt-collector/
The Cease and Desist Letter - Done Righthttp://www.protectingconsumerrights.com/blog/2012/6/5/the-cease-and-desist-letter-done-right/Often times a consumer will contact us and claim that they sent notice to a debt collector to "cease and desist" but the collector continues to contact them.   Surely our knee jerk reaction is to think that there is a clear violation of 15 U.S.C. 1692c(c).  According to this section, if a consumer advises a debt collector in writing to cease and desist all communications, or that the consumer refuses to pay the debt, then the collector must cease all communications with the consumer except for a few limited purposes - to advise that the creditor intends to invoke a specific remedy or to advise the consumer that the collector has closed the account.  Naturally, we want to see the letter that the consumer wrote to the collector, supposedly advising it to cease and desist communications. 

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.

 

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Tue, 05 Jun 2012 13:16:56 GMThttp://www.protectingconsumerrights.com/blog/2012/6/5/the-cease-and-desist-letter-done-right/
NCO Financial Systems - A Debt Collection Agencyhttp://www.protectingconsumerrights.com/blog/2012/6/1/nco-financial-systems-a-debt-collection-agency/NCO Financial Systems is one of the country's larges debt collection companies.  Along with being one of the largest debt collectors comes a multitude of complaints and lawsuits filed against them for nearly every form of harassment.    Complaints have been made regarding the volume of calls they make to a debtor, disclosure of a debtor's private affairs, or calling and failing to identify who they are.   NCO not only collects debts themselves, but buy debts from other creditors and assign the debts to other collectors to do the work.  NCO's website boasts having over 100 operations centers. 

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.


 

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Fri, 01 Jun 2012 13:21:46 GMThttp://www.protectingconsumerrights.com/blog/2012/6/1/nco-financial-systems-a-debt-collection-agency/
Defaulted Student Loans on Risehttp://www.protectingconsumerrights.com/blog/2012/5/30/defaulted-student-loans-on-rise/An increasing percentage of college graduates have student loans.  In today's economy, it is hardly a surprise that the amount of loans and the inability to repay them are rising.

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.

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Wed, 30 May 2012 13:47:55 GMThttp://www.protectingconsumerrights.com/blog/2012/5/30/defaulted-student-loans-on-rise/
The Credit Report That Affects Insurance Rateshttp://www.protectingconsumerrights.com/blog/2012/5/21/the-credit-report-that-affects-insurance-rates/The Fair Credit Reporting Act provides that potential insurers have a permissible purpose for accessing your credit report when they are determining whether to provide insurance coverage.   Though when we look at our Trans Union, Equifax or Experian credit reports, we rarely, if ever see insurance companies performing inquiries on the credit reports.   Is that because insurance companies rarely perform credit inquiries?  Not at all. 

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.

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Mon, 21 May 2012 15:56:02 GMThttp://www.protectingconsumerrights.com/blog/2012/5/21/the-credit-report-that-affects-insurance-rates/
Fitness Club Collectionshttp://www.protectingconsumerrights.com/blog/2012/5/11/fitness-club-collections/Fitness Club Collections sent out a letter to an alleged debtor. It was the first communication from Fitness Club Collections to this person.  However, the letter failed to advise the consumer that they had a right to dispute the debt and seek validation of the debt from Fitness Club Collections.  Therefore, this debt collector violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692g(a). 

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.

 

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Fri, 11 May 2012 13:03:06 GMThttp://www.protectingconsumerrights.com/blog/2012/5/11/fitness-club-collections/
The Debt Collection Letter Cyclehttp://www.protectingconsumerrights.com/blog/2012/5/9/the-debt-collection-letter-cycle/You receive a collection letter, and like all first collection letters, it advises you that "unless you dispute the validity of this debt or any portion thereof within 30 days of the receipt of this letter, we will assume the debt is valid"  The letter goes on to say that "if you dispute the debt in writing within the 30 day period, we will provide you validation of the debt."  These are important disclosures that a collector must provide within 5 days of their initial communication with you if those disclosures were not in the initial communication itself. 

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.
 


 


 

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Wed, 09 May 2012 12:58:36 GMThttp://www.protectingconsumerrights.com/blog/2012/5/9/the-debt-collection-letter-cycle/
Accretive Health - Debt Collector for Medical Billshttp://www.protectingconsumerrights.com/blog/2012/5/2/accretive-health-debt-collector-for-medical-bills/About Accretive Health
Accretive Health is a Chicago based company that was founded in 2003.  Its business is collecting medical bills.    It is one of the nation's largest medical debt collectors.  According to their website, they are committed " to helping our hospital clients fulfill their mission to provide better quality care and increase healthcare access to all; we are committed to best practices and to continuous learning; we are committed to all of our stakeholders; and we are committed to build a great company."  In sum, their aim is to improve the revenue for their clients, hospitals and health care providers.  The complaints regarding Accretive Health is that they have their debt collectors at the hospital demanding payments before getting emergency care.

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.

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Wed, 02 May 2012 16:25:19 GMThttp://www.protectingconsumerrights.com/blog/2012/5/2/accretive-health-debt-collector-for-medical-bills/
National Credit Recovery Services - A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/4/25/national-credit-recovery-services-a-debt-collector/National Credit Recovery is a debt collection company located in Ottawa, a suburb of Kansas City, Kansas.  Their website boasts an experienced management team that understands the needs of both debtors and creditors.   They emphasize that their callers aim to work out a compromise because everyone deserves a second chance.  Many complain that the callers are rude and disrespectful to consumers.  The callers fail introduce themselves to debtors.  Others have complained that National Credit Recovery have tried to scam them.  One complained that National Recovery Services said the consumer won the lottery and had to provide them with a $400 certified check to obtain their winnings.

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.

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Wed, 25 Apr 2012 15:53:31 GMThttp://www.protectingconsumerrights.com/blog/2012/4/25/national-credit-recovery-services-a-debt-collector/
Threats of Wage Garnishmenthttp://www.protectingconsumerrights.com/blog/2012/4/25/threats-of-wage-garnishment/We hear a constant flow of complaints about debt collectors threatening wage garnishment.  But are those threats real?  There are a few rare instances when a threat of a wage garnishment is very real and the consumer should have concern.  However, the overwhelming majority of those threats are improper threats that violate the Fair Debt Collection Practices Act.   Here are things to look for when confronted with a threat of garnishment:

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.

 

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Wed, 25 Apr 2012 11:26:25 GMThttp://www.protectingconsumerrights.com/blog/2012/4/25/threats-of-wage-garnishment/
The Credit Bureaus - Complaints by Consumershttp://www.protectingconsumerrights.com/blog/2012/4/9/the-credit-bureaus-complaints-by-consumers/Having your identity stolen is an ordeal.  You don't realize how important your credit is until it has been destroyed.  Trying to write a check at a grocery store or rent an apartment becomes difficult, if not impossible.

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.

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Mon, 09 Apr 2012 11:55:14 GMThttp://www.protectingconsumerrights.com/blog/2012/4/9/the-credit-bureaus-complaints-by-consumers/
What The Debt Collector Is Not Telling Youhttp://www.protectingconsumerrights.com/blog/2012/3/30/what-the-debt-collector-is-not-telling-you/Complaints from consumers about debt collection tactics are at their highest levels in history.  Many Americans are feeling the heat of debt collection calls.  But in those calls there are things that the collector won't let you know and surely won't tell you.  Here are 6 items:

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. 

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Fri, 30 Mar 2012 13:55:25 GMThttp://www.protectingconsumerrights.com/blog/2012/3/30/what-the-debt-collector-is-not-telling-you/
Pioneer Credit Recovery - A Debt Collection Agencyhttp://www.protectingconsumerrights.com/blog/2012/3/30/pioneer-credit-recovery-a-debt-collection-agency/Contacts with third parties, disclosure of the debt to third parties, and a multiplicity of calls leading to harassment are some of the complaints heard from consumers regarding Pioneer Credit Recovery.  Pioneer is one of the collection agencies that has engaged in a contract with the US Department of Education for the collection of Student Loans.  An article published on one of many stories about how they harass debtors can be found by clicking here.  Pioneer Credit Recovery is owned by Sallie Mae and collects on portfolios of debt of nearly $50 billion.  They have about 1,000 collectors working for them in call centers in Wyoming, New York, Florida and New Jersey. 

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.


 

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Fri, 30 Mar 2012 13:35:50 GMThttp://www.protectingconsumerrights.com/blog/2012/3/30/pioneer-credit-recovery-a-debt-collection-agency/
Credit Repair Self Helphttp://www.protectingconsumerrights.com/blog/2012/3/30/credit-repair-self-help/Consumers looking to have their credit reports repaired from damaging marks can find an overwhelming number of companies that are willing to help them in the process.  But do these companies actually help you and do they accomplish what you need?  The first step is to determine whether the company you are considering is a legitimate company truly designed to assist in repairing your credit or whether it is a money making scam.  In fact, the Federal Trade Commission offers certain important guidelines to how to determine that the credit repair scams are scams. Here are the guidelines according to FTC to determine whether the companies are up to no-good.

  • 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.

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Fri, 30 Mar 2012 13:13:09 GMThttp://www.protectingconsumerrights.com/blog/2012/3/30/credit-repair-self-help/
Rebuilding Your Credithttp://www.protectingconsumerrights.com/blog/2012/3/18/rebuilding-your-credit/If you have had a rough couple of years financially, and weathered the storm, now is time to rebuild your credit.  How can you rebuild their credit after having had multiple delinquencies?  The first rule is that it takes some time.  There is no special formula that can restore your credit overnight. In order to restore your credit, consider the major credit score factors; timeliness of payments, average daily balance across trade lines, debt to available credit ratio, history of credit, and types of credit used.  Focus on those factors and restore your credit in a long lasting manner.

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. 

 

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Sun, 18 Mar 2012 21:48:05 GMThttp://www.protectingconsumerrights.com/blog/2012/3/18/rebuilding-your-credit/
I Just Got Served With A Lawsuit. What Do I do Now?http://www.protectingconsumerrights.com/blog/2012/3/18/i-just-got-served-with-a-lawsuit-what-do-i-do-now/ 

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.

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Sun, 18 Mar 2012 21:40:01 GMThttp://www.protectingconsumerrights.com/blog/2012/3/18/i-just-got-served-with-a-lawsuit-what-do-i-do-now/
Non-Consumer Debts Being Collectedhttp://www.protectingconsumerrights.com/blog/2012/3/16/non-consumer-debts-being-collected/Reports have surfaced that in some cities, such as Chicago on particular, efforts are being increased to collect old tickets and fines that have yet to be paid.  Some of the fines and tickets may date back more than ten years.  Consumers should be on alert, because it is anticipated that the collection tactics that will be employed will be harsh and abusive. 

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.

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Fri, 16 Mar 2012 15:04:45 GMThttp://www.protectingconsumerrights.com/blog/2012/3/16/non-consumer-debts-being-collected/
Used Car Buying Tipshttp://www.protectingconsumerrights.com/blog/2012/3/12/used-car-buying-tips/Buying a used car is not an easy task.  The vehicle might look pretty and polished, but you never know how the vehicle has lived.  To avoid buying a used car that has hidden damage or been previously wrecked, here are some tips to follow. 

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.  

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Mon, 12 Mar 2012 15:14:34 GMThttp://www.protectingconsumerrights.com/blog/2012/3/12/used-car-buying-tips/
FDCPA Dispute Letterhttp://www.protectingconsumerrights.com/blog/2012/3/12/fdcpa-dispute-letter/You just found out for the first time that a debt collection agency is trying to collect a debt from you.  Perhaps you found out by phone, or perhaps you found out by letter.  You want to dispute this debt for whatever reason you have (not your debt, incorrect amount, etc).  What should go in the dispute letter? 

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.

 

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Mon, 12 Mar 2012 14:51:13 GMThttp://www.protectingconsumerrights.com/blog/2012/3/12/fdcpa-dispute-letter/
About Frontline Asset Strategies - A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/3/5/about-frontline-asset-strategies-a-debt-collector/Their website boasts that "persistence pays" and their actions surely back up their motto - they are persistent.    Frontline Asset Strategies is located in Minneapolis/St. Paul, MN and has experience of over 50 years in collections.  Complaints that they have ignored demands to refrain from calls to debtors' places of employment as well as ignoring demands to cease and desist highlight their claims for being aggressive and relentless collectors.

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.

 

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Mon, 05 Mar 2012 14:56:13 GMThttp://www.protectingconsumerrights.com/blog/2012/3/5/about-frontline-asset-strategies-a-debt-collector/
Amending FDCPA to Exempt Collectors for Leaving Messageshttp://www.protectingconsumerrights.com/blog/2012/3/5/amending-fdcpa-to-exempt-collectors-for-leaving-messages/I was reported that U.S. Rep. Barney Frank (D-Mass.) introduced legislation Tuesday that appears to directly address liability issues that arise when debt collectors leave voice messages for consumers concerning a debt on their answering machines or cell phones. 

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. 

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Mon, 05 Mar 2012 11:44:07 GMThttp://www.protectingconsumerrights.com/blog/2012/3/5/amending-fdcpa-to-exempt-collectors-for-leaving-messages/
The Crime of Having a Common Namehttp://www.protectingconsumerrights.com/blog/2012/3/2/the-crime-of-having-a-common-name/Many of us share the same name with someone else in this country.  Many times that person is in your same city or county.  It would not be so bad if all you shared was the same name.  But what if, because of that same name, you were forced to share other things with that person - like their criminal background or their credit report? 

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.

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Fri, 02 Mar 2012 12:21:38 GMThttp://www.protectingconsumerrights.com/blog/2012/3/2/the-crime-of-having-a-common-name/
About Praxis Financial Solutions, Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/2/17/about-praxis-financial-solutions,-debt-collector/High pressure sales tactics like not letting you off the phone until you make a deal with them is one of the effective ways Praxis Financial Solutions attempts to collect debts.   Located in Lincolnwood, Illinois (just about 10 minutes outside of Chicago, Praxis was incorporated in 2006 and boasts having experience of 35 years in collecting.   However, internet posting boards reveal a number of complaints ranging from a high volume of calls in a short period of time to unwanted calls to one's place of employment.  Others complain of a curt or rude demeanor and verbal abuse. 

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.

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Fri, 17 Feb 2012 11:07:34 GMThttp://www.protectingconsumerrights.com/blog/2012/2/17/about-praxis-financial-solutions,-debt-collector/
About G. Reynolds Sims & Associates - Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/2/10/about-g-reynolds-sims-associates-debt-collectors/Don't let their letter fool you that you are currently  under a "legal review" and you must act immediately.  G. Reynolds Sims are a debt collector.  G. Reynolds Sims was founded in 2006 and has its headquarters in Troy, Michigan.  Internet chat sites reflect a wide variety of complaints.  Many complain that they were pressured into paying because they believed they would be sued, and would not get anything in writing to reflect the obligation was paid despite a promise they would get one.  Many others complain that they receive a barrage of phone calls from them despite not being the debtor they are looking for.  Seems that telling them that they have the wrong number does not convince them to quit calling.    One lawsuit was filed in the past for harassing neighbors and friends of the person from whom they were trying to collect money. 

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.

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Fri, 10 Feb 2012 11:21:15 GMThttp://www.protectingconsumerrights.com/blog/2012/2/10/about-g-reynolds-sims-associates-debt-collectors/
About MIG Capital, Inc. - Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/2/6/about-mig-capital,-inc-debt-collectors/MIG Capital Inc. may call you and tell you that they are a "mediation" company, but don't be fooled.  They are a debt collection agency.  MIG started in 2009 and is located in Tampa, Florida.  They operate a call center out of there, though it is known to be rather small in size.  MIG has been known to collect on old credit card debts.  There have been complaints registered against them with the Better Business Bureau and with many on line chat websites.  The most frequent complaints are calls to 3rd parties - such as other family members, friends, and neighbors.  There have also been complaints against them for making threats to sue on debts, though they are not lawyers and likely have little to no information or paperwork to back up the debt.   In the last year, at least 2 federal lawsuits have been filed against them by victims of their illegal practices.

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.

 

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Mon, 06 Feb 2012 15:33:58 GMThttp://www.protectingconsumerrights.com/blog/2012/2/6/about-mig-capital,-inc-debt-collectors/
Debt Collection Calls - What to Knowhttp://www.protectingconsumerrights.com/blog/2012/2/1/debt-collection-calls-what-to-know/As much of the collected data recently shows, this tough economy has brought upon a dramatic increase in collection calls and complaints of harassment.  Be prepared for them so you can act if they violate your rights.  4 words of advice:  listen, look, log and save.

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.

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Wed, 01 Feb 2012 15:33:09 GMThttp://www.protectingconsumerrights.com/blog/2012/2/1/debt-collection-calls-what-to-know/
Smart Debt Tips for 2012http://www.protectingconsumerrights.com/blog/2012/1/27/smart-debt-tips-for-2012/It is a new year and a good time to make a fresh start. The past few years have been a financial strain for most Americans. Let's start the new year on a positive note.  Here are a few smart tips for avoiding financial stress, improving your credit, and protecting yourself against abusive debt collectors.

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. 

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Fri, 27 Jan 2012 11:55:08 GMThttp://www.protectingconsumerrights.com/blog/2012/1/27/smart-debt-tips-for-2012/
Keeping Your Credit Healthy - 4 Simple Ruleshttp://www.protectingconsumerrights.com/blog/2012/1/25/keeping-your-credit-healthy-4-simple-rules/RULE 1:  Check your credit reports on an annual basis.  You can order your credit report FREE annually.  All of the three nationwide credit agencies, Transunion, Equifax and Experian are required offer you one free report every twelve months.  You an order all three of the reports by contacting annualcredit report.com.

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.

 

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Wed, 25 Jan 2012 16:32:42 GMThttp://www.protectingconsumerrights.com/blog/2012/1/25/keeping-your-credit-healthy-4-simple-rules/
Lemon Law What Does It Mean For The Consumerhttp://www.protectingconsumerrights.com/blog/2012/1/7/lemon-law-what-does-it-mean-for-the-consumer/Have you ever bought a car and thought, after driving it for a while, thought that you have a lemon? If your recently purchased automobile has been in the repair shop frequently, you may have purchased a lemon. How do you determine if your vehicle is a lemon?

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.

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Sat, 07 Jan 2012 18:41:30 GMThttp://www.protectingconsumerrights.com/blog/2012/1/7/lemon-law-what-does-it-mean-for-the-consumer/
Identity Theft – 10 Things You Need To Knowhttp://www.protectingconsumerrights.com/blog/2012/1/7/identity-theft-–-10-things-you-need-to-know/An estimated 11 million Americans discovered that they were victims of some form of identity theft last year. Everyone is susceptible to identity theft; the young or old, rich or poor, even minors. Here are some important tips and facts about identity theft so you can avoid becoming a victim.

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.

 

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Sat, 07 Jan 2012 17:47:43 GMThttp://www.protectingconsumerrights.com/blog/2012/1/7/identity-theft-–-10-things-you-need-to-know/
Garnishing Your Bank Accounthttp://www.protectingconsumerrights.com/blog/2011/11/28/garnishing-your-bank-account/My bank account was frozen and I was never given notice.  This is a frequent complaint that we hear from consumers.  Learn more about this and other frequent inquiries by reading below.

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

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Mon, 28 Nov 2011 16:20:10 GMThttp://www.protectingconsumerrights.com/blog/2011/11/28/garnishing-your-bank-account/
Debt Collection Calls At Workhttp://www.protectingconsumerrights.com/blog/2011/11/18/debt-collection-calls-at-work/Many consumers have the same problem - paying their bills.  Needless to say, this is a common problem when unemployment is at an all time high.  Americans are struggling to pay their bills, the ones who are lucky enough to have jobs are working hard to keep them.  No one wants collection calls at work threatening their employment.  But if they start to call you at work, you wonder - is this legal?

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!

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Fri, 18 Nov 2011 15:58:21 GMThttp://www.protectingconsumerrights.com/blog/2011/11/18/debt-collection-calls-at-work/
Multiple Calls from Collectors as Harassmenthttp://www.protectingconsumerrights.com/blog/2011/11/16/multiple-calls-from-collectors-as-harassment/We hear many complaints from consumers that they are getting so many calls from the collector that it is harassing and abusive.  The Fair Debt Collection Practices Act deems it a violation of the law to harass a debtor, and one of the ways it can be done is through a campaign of constant calling.  This is done in the hopes that the consumer will just give in and make payment so that the calls will stop.  The statute says that a debt collector cannot  "caus[e] a telephone to ring...repeatedly or continuously with the intent to annoy, abuse, or harass the person at the called number."   15 U.S.C. 1692d(5).

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. 

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Wed, 16 Nov 2011 16:17:29 GMThttp://www.protectingconsumerrights.com/blog/2011/11/16/multiple-calls-from-collectors-as-harassment/
Credit Report Monitoring - Do You Need It?http://www.protectingconsumerrights.com/blog/2011/11/2/credit-report-monitoring-do-you-need-it/I read an interesting piece in an article in Time Magazine about 5 things you should never buy in a store.  It included unlimited cell phone minutes, bottled water,  and alternative flu remedies.  It of course cautioned that there are exceptions to the rules.  For instance, despite the reports that most bottled water is simply modified tap water, it would be preferred to the tap water in a foreign country where the water system is in question. 

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.

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Wed, 02 Nov 2011 12:11:17 GMThttp://www.protectingconsumerrights.com/blog/2011/11/2/credit-report-monitoring-do-you-need-it/
When Credit Companies Perform Collectionshttp://www.protectingconsumerrights.com/blog/2011/10/28/when-credit-companies-perform-collections/The definition of debt collector under the  Fair Debt Collection Practices Act does not include original creditors or servicers of an account for a creditor.  There are certain exceptions to the rule, but for the most part, the statute only applies to third party debt collectors.  Therefore, your creditors  are not held responsible for following the FDCPA's guidelines.  Absent any laws in your state addressing creditors collection practices, an original creditor can get away with most conduct that a debt collector cannot.  However, the economic downturn over the last few years have impacted not just the consumers, but the banks and financial institutions as well.  As such, the banks that once owned our loans have been gobbled up by bigger or more successful financial institutions.  This circumstance can cause the creditor's role to change into that of a debt collector, and cause them to fall into the ambit of the FDCPA.

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. 

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Fri, 28 Oct 2011 12:01:03 GMThttp://www.protectingconsumerrights.com/blog/2011/10/28/when-credit-companies-perform-collections/
Virtual Credit Card Numbers - Helpful or Harmful?http://www.protectingconsumerrights.com/blog/2011/10/14/virtual-credit-card-numbers-helpful-or-harmful/The virtual credit card has been around for some time. Remarkably, few consumers use them. American Express discontinued virtual credit card service in 2004 and Discover followed in September, but Bank of America and Citi still offer it.

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.

 

 

 

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Fri, 14 Oct 2011 16:27:47 GMThttp://www.protectingconsumerrights.com/blog/2011/10/14/virtual-credit-card-numbers-helpful-or-harmful/
Debt Collection Firms Penalized For Abusive Tacticshttp://www.protectingconsumerrights.com/blog/2011/10/14/debt-collection-firms-penalized-for-abusive-tactics/Minnesota's Department of Commerce is clamping down on the abusive tactics of debt collection firms. Eight firms are facing severe financial penalties ranging from $40,000 to as high as $300,000.  These firms are being accused of harassing consumers, stealing personal financial information and hiring felons as collectors. The firms that are being penalized include Allied Interstate, General Revenue Corp., Va Ru Corp. of Illinois and Nationwide Recovery Systems.

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.

 

 

 

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Fri, 14 Oct 2011 14:08:00 GMThttp://www.protectingconsumerrights.com/blog/2011/10/14/debt-collection-firms-penalized-for-abusive-tactics/
Abusive Debt Collectors Shut Down by Fedshttp://www.protectingconsumerrights.com/blog/2011/10/7/abusive-debt-collectors-shut-down-by-feds/The Federal Trade Commission shut down a Southern California debt collection business accusing them of harassing consumers and small business owners with obscene language and threats. They are being charged with violating the Federal Trade Commission Act and Fair Debt Collection Practices Act.

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 

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Fri, 07 Oct 2011 12:40:37 GMThttp://www.protectingconsumerrights.com/blog/2011/10/7/abusive-debt-collectors-shut-down-by-feds/
Debt Collection, Third Party Contacthttp://www.protectingconsumerrights.com/blog/2011/10/4/debt-collection,-third-party-contact/The General Rule of Thumb

  • 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.

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Tue, 04 Oct 2011 13:07:09 GMThttp://www.protectingconsumerrights.com/blog/2011/10/4/debt-collection,-third-party-contact/
What do I do now?http://www.protectingconsumerrights.com/blog/2011/10/3/what-do-i-do-now/First, call the collector. 

  • 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

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.


 

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Mon, 03 Oct 2011 17:16:11 GMThttp://www.protectingconsumerrights.com/blog/2011/10/3/what-do-i-do-now/
To Debit or Not To Debit - The New Consumer Debatehttp://www.protectingconsumerrights.com/blog/2011/10/3/to-debit-or-not-to-debit-the-new-consumer-debate/Debit cards have become the new normal. But did you know that debit cards are your least-friendly piece of plastic in your wallet?  The costs of using debit cards are rising.  Bank of America now charges a $5 monthly fee for making debit-card purchases. Chase, PNC and TD Bank charges $5 for each ATM usage. Banks that had offered debit reward programs have begun to cancel them.

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

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Mon, 03 Oct 2011 15:17:01 GMThttp://www.protectingconsumerrights.com/blog/2011/10/3/to-debit-or-not-to-debit-the-new-consumer-debate/
Is Your Spouse Concealing Debt?http://www.protectingconsumerrights.com/blog/2011/9/26/is-your-spouse-concealing-debt/Do you know if your spouse has a secret debt? One spouse hid $50,000 worth of gambling debt on credit cards. Another spouse stole his wife's credit card to use at the racetrack. A third spouse stacked up big debts paying for online porn and dating sites.

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.

 

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Mon, 26 Sep 2011 15:22:27 GMThttp://www.protectingconsumerrights.com/blog/2011/9/26/is-your-spouse-concealing-debt/
The Business of Debt Collecting in Americahttp://www.protectingconsumerrights.com/blog/2011/9/22/the-business-of-debt-collecting-in-america/There was a gathering of Debt Collectors in Atlantic City this week. There are more than 4,100 debt collection agencies in the US employing close to 450,000 people. This is expected to grow by 26% in the next three years.

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.   

 

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Thu, 22 Sep 2011 15:42:19 GMThttp://www.protectingconsumerrights.com/blog/2011/9/22/the-business-of-debt-collecting-in-america/
The Social Media Test - Will You Pass?http://www.protectingconsumerrights.com/blog/2011/9/21/the-social-media-test-will-you-pass/If you are currently looking for employment or considering applying for a new job, you must consider your history - all of it. Gizmodo took 6 of its employees and had Social Intelligence run background checks. Social Intelligence uses your Internet and social media history to run background checks.  You should check out your credit report and dispute any errors before your job search. 

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

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Wed, 21 Sep 2011 16:05:46 GMThttp://www.protectingconsumerrights.com/blog/2011/9/21/the-social-media-test-will-you-pass/
Fixing Your Credit Score After Disaster Strikeshttp://www.protectingconsumerrights.com/blog/2011/9/19/fixing-your-credit-score-after-disaster-strikes/If your credit score took a beating because your house went into foreclosure or you filed for bankruptcy, do not despair. The good news is that a bad credit score is not permanent.  It can be fixed.  It can take 7-10 years for improvement, but it might be faster if you are proactive.

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

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Mon, 19 Sep 2011 14:07:37 GMThttp://www.protectingconsumerrights.com/blog/2011/9/19/fixing-your-credit-score-after-disaster-strikes/
New Credit Scoring Model Could Help Millionshttp://www.protectingconsumerrights.com/blog/2011/9/19/new-credit-scoring-model-could-help-millions/What is FICO and how does it help my credit score?

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!

 

 

 

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Mon, 19 Sep 2011 10:18:20 GMThttp://www.protectingconsumerrights.com/blog/2011/9/19/new-credit-scoring-model-could-help-millions/
What's On Your Credit Report? Man Fired Due to Erroneous Infohttp://www.protectingconsumerrights.com/blog/2011/9/16/what's-on-your-credit-report-man-fired-due-to-erroneous-info/Leonardo Molina worked at a Roskam Baking Co. through a temp agency. He earned a permanent job, but after 2 days he was terminated. The temp agency did not want Mr. Molina back. The problem was that his background check showed that Mr. Molina was convicted of a 2007 felony in Florida.

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!

 

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Fri, 16 Sep 2011 13:09:20 GMThttp://www.protectingconsumerrights.com/blog/2011/9/16/what's-on-your-credit-report-man-fired-due-to-erroneous-info/
Expanding Credit Checks Beyond Scoreshttp://www.protectingconsumerrights.com/blog/2011/9/16/expanding-credit-checks-beyond-scores/It used to be that you when you took out a loan or applied for a store credit card, the lender would check your credit score. Today, the credit checks go beyond the score.

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

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Fri, 16 Sep 2011 11:05:19 GMThttp://www.protectingconsumerrights.com/blog/2011/9/16/expanding-credit-checks-beyond-scores/
Maryland Makes A Push for More Proof In Debt-Collection Lawsuitshttp://www.protectingconsumerrights.com/blog/2011/9/9/maryland-makes-a-push-for-more-proof-in-debt-collection-lawsuits/Marquis Jones has been sued by a debt collection company for a credit card that she does not believe she owes. The firm never proved she did own the debt.

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.   

 

 

 

 

 

 

 

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Fri, 09 Sep 2011 13:01:55 GMThttp://www.protectingconsumerrights.com/blog/2011/9/9/maryland-makes-a-push-for-more-proof-in-debt-collection-lawsuits/
7 Steps to Clean Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2011/8/24/7-steps-to-clean-your-credit-report/Remember to check your credit report on a regular basis and not when you are trying to make big purchases. In case you find errors on your report, you need time to fix them.  Here are seven steps to help clean your credit report.

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

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Wed, 24 Aug 2011 14:26:25 GMThttp://www.protectingconsumerrights.com/blog/2011/8/24/7-steps-to-clean-your-credit-report/
Disadvantages of Co-Signing on Credit Cards and Loanshttp://www.protectingconsumerrights.com/blog/2011/8/23/disadvantages-of-co-signing-on-credit-cards-and-loans/An elderly woman co-signed for her adult son on two credit cards and for a truck. Now the mother is stuck with $20,000 debt. What are her options?

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.   

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Tue, 23 Aug 2011 15:46:22 GMThttp://www.protectingconsumerrights.com/blog/2011/8/23/disadvantages-of-co-signing-on-credit-cards-and-loans/
Is My Car A Lemon?http://www.protectingconsumerrights.com/blog/2011/11/9/is-my-car-a-lemon/You purchased a car and it has been in the repair shop frequently.  You are angry and frustrated.  Despite your monthly car payments, you are without a working vehicle.  How do you determine if your vehicle is a lemon?

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.   

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Wed, 09 Nov 2011 15:08:31 GMThttp://www.protectingconsumerrights.com/blog/2011/11/9/is-my-car-a-lemon/
Debt Collectors and The Collection Letterhttp://www.protectingconsumerrights.com/blog/2012/3/16/debt-collectors-and-the-collection-letter/The Fair Debt Collection Practices Act provides that debt collectors must be careful when acquiring location information about the consumer.  If you are having debt issues, be aware of your rights.  

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.

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Fri, 16 Mar 2012 16:25:09 GMThttp://www.protectingconsumerrights.com/blog/2012/3/16/debt-collectors-and-the-collection-letter/
Student Loans and Debt Collectionhttp://www.protectingconsumerrights.com/blog/2012/5/30/student-loans-and-debt-collection/Collectors for Student Loan
The definition of debt collector under the  Fair Debt Collection Practices Act does not include original creditors or servicers of an account for a creditor.  There are certain exceptions to the rule, but for the most part, the statute only applies to third party debt collectors.  Therefore, your creditors  are not held responsible for following the FDCPA's guidelines. 

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.

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Wed, 30 May 2012 14:16:36 GMThttp://www.protectingconsumerrights.com/blog/2012/5/30/student-loans-and-debt-collection/
Credit Ruined By Ex-Spouse?http://www.protectingconsumerrights.com/blog/2011/10/21/credit-ruined-by-ex-spouse/Be careful. An ex-spouse can ruin your credit long after the divorce.  We hear it all the time.  There is a divorce decree that states that one spouse is liable for certain old credit card bills.  Years later, that spouse discontinues making payments for whatever reason.  The spouse that was not supposed to be liable for the account finds a damaging mark on their credit report stating that the account is delinquent.  The natural reaction would be to immediately dispute your credit report and wave the divorce decree in front of them as proof of your innocence.  Don't be surprised to find out that the credit bureaus and creditors won't remove this from the credit report - and they don't have to. 

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. 

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Fri, 21 Oct 2011 14:17:28 GMThttp://www.protectingconsumerrights.com/blog/2011/10/21/credit-ruined-by-ex-spouse/
Disadvantages Of Co-Signinghttp://www.protectingconsumerrights.com/blog/2012/3/18/disadvantages-of-co-signing/When a family member, loved one, or close friend asks you to assist them with a credit purchase, you naturally want to help.  The advantages are that you are providing someone with a great opportunity, and if they make all their payments on time, you can both benefit from the good credit history. However, there are greater disadvantages.

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.

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Sun, 18 Mar 2012 21:45:56 GMThttp://www.protectingconsumerrights.com/blog/2012/3/18/disadvantages-of-co-signing/
SmithMarco Wins a Used Car Lemon Casehttp://www.protectingconsumerrights.com/blog/2012/10/10/smithmarco-wins-a-used-car-lemon-case/A Chicago family went  to Infiniti of Orland Park to buy a used 2005 Infiniti G35 as a gift for their son who was about to attend college.  The salesman told the family that the car only had one previous owner, had only been driven locally, and had sustained no prior damage.  Unfortunately, the family later found out that what the salesman said was entirely fabricated. The vehicle had multiple owners.  Worse, the vehicle had been involved in a collision in the past where it sustained in excess of $16,000 in damage.

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.

 

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Wed, 10 Oct 2012 12:31:46 GMThttp://www.protectingconsumerrights.com/blog/2012/10/10/smithmarco-wins-a-used-car-lemon-case/
The Importance of Checking your Credit Scoreshttp://www.protectingconsumerrights.com/blog/2012/10/10/the-importance-of-checking-your-credit-scores/Summer is barely in the rear-view mirror, and winter is right in front of us. Believe it or not, the holiday season will soon be upon us. You may not be ready to talk about that yet, but, for forward thinkers, now is a good time to consider your credit file.

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.

 

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Wed, 10 Oct 2012 19:49:05 GMThttp://www.protectingconsumerrights.com/blog/2012/10/10/the-importance-of-checking-your-credit-scores/
Debt Collectors Contacting your Employerhttp://www.protectingconsumerrights.com/blog/2012/10/15/debt-collectors-contacting-your-employer/Debt Collectors like to contact a debtor's employer because they know how much that worries the debtor and forces them into a payment agreement.  Once someone at work finds out about a debt, it can be quite embarrassing.  The boss and co-workers know about private information that is quite sensitive.  One may fear the employer taking some kind of action against the employee - such as termination for not being able to keep finances in order.  Also, nobody wants to be the subject of water cooler discussions.  So are these communications legal?  And how do we get them to stop?

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.

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Mon, 15 Oct 2012 18:24:36 GMThttp://www.protectingconsumerrights.com/blog/2012/10/15/debt-collectors-contacting-your-employer/
Tips to Avoid Identity Thefthttp://www.protectingconsumerrights.com/blog/2013/3/6/tips-to-avoid-identity-theft/Identity theft comes in many forms and faces, and can hit anyone at any time.  Believe it or not small children can be victims of identity theft if they have a Social Security number.  It doesn't matter what your social economic status is; if you have any credit, or any credit card, a sophisticated identity thief can help themselves to some luxuries on you.  Below are some ways to avoid identity theft:

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.

 

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Wed, 06 Mar 2013 22:34:46 GMThttp://www.protectingconsumerrights.com/blog/2013/3/6/tips-to-avoid-identity-theft/
Lemon Law Protectionhttp://www.protectingconsumerrights.com/blog/2013/3/10/lemon-law-protection/Spring and summer are just around the corner.  As the snow and cold is ushered away, it is replaced by warm sunny days and the ability to spend time outdoors.  For the automobile industry, warm weather translates into more traffic and sales.  In mid July, car dealers put the last year's automobile on sale as manufacturers begin to launch their new lines and latest models.  In many cases, the 2014 models will come out in August of this year.

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.

 

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Sun, 10 Mar 2013 17:17:20 GMThttp://www.protectingconsumerrights.com/blog/2013/3/10/lemon-law-protection/
I Just Got A Call From A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2011/7/13/i-just-got-a-call-from-a-debt-collector/"I just got a call from a debt collector, it's the first call I ever got from them…what do I do now?" The Fair Debt Collection Practices Act provides a long list of do's and don'ts for a debt collector. If this first call was alarming, or loaded with harassment or threats, call us and we can discuss representing you at no cost to you. 

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

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Wed, 13 Jul 2011 11:23:09 GMThttp://www.protectingconsumerrights.com/blog/2011/7/13/i-just-got-a-call-from-a-debt-collector/
Garnishment - How Did This Happen?http://www.protectingconsumerrights.com/blog/2013/5/29/garnishment-how-did-this-happen/It is a familiar story - a panicked consumer calls.  Past _due _imgHis or her paycheck was garnished.  They had no clue this was going on.  He or she did not receive notice that their wages were going to be garnished or maybe that there was even a case pending against them.   How can they get this garnishment stopped, and what other rights do they have?

What is a wage garnishment?
Wage garnishment is the most common type of garnishment.   It is the process of deducting money from an employee's wages.    No company or business can garnish wages without first having a judgment.  Each state has different rules on wage garnishment.  To see the rules in your state, click here

What is a judgment?
A judgment is a finding as a matter of law that a certain debt is owed.  There is no more legal challenge to the debt.  However, 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.

How can I stop it?
Once that judgment is entered, however, the collector has a right to seek out assets to pay the judgment as long as it remains unpaid.  Therefore, until it is paid, the garnishment will continue.  In some states, there are laws that allow a consumer to make a motion for installment payments that, if reasonable, the court will order that the creditor accept.  As long as payments are made, the collector or creditor cannot garnish.

What if I need every penny of my income for survival?
Contact the clerk of the court and ask about requesting a hearing for hardship due to wage garnishment.  Each state and county have different rules and procedures.  There is no guarantee, but it might be worth a few phone calls to see what you will need to do to get a hearing in front of a judge.  If you can obtain a hearing, attend your court date prepared with proof of your income and expenses. 

Do I have a right be notified before my wages are garnished?
There is no rule requiring notification before garnishment.  Once the judgment is filed, the creditor or collector has a right to seek out assets as long as the judgment remains unpaid.  There is, however, a rule that requires service of the lawsuit upon the consumer in the first place.

Is my income exempt from wage garnishment?
Unemployment, social security, and disability payments are exempt from garnishment.  If the creditor or debt collector takes these funds, you need to prove to them that the funds are exempt.  Provide the collector with written proof regarding the original of the assets.  If the funds are still not returned, then your rights under the Fair Debt Collection Practices Act might have been violated.  For a free consultation, contact SmithMarco. 

Whoa - hold on.  I don't remember being sued for this debt.  I am not even sure it is mine.  Now what?
As I said earlier, for a judgment to be entered, there first be a lawsuit filed and you should have been served a summons.  This notifies you of the lawsuit and usually includes a copy of the complaint (why you are being sued).   This gives you a chance to defend yourself.

I was never notified of the lawsuit.  I never received a summons.  This is unfair.  What can I do?
You need to contact the court where the lawsuit was filed and obtain the court file. It is a public record so you are entitled to review it.  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.  You 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. 

I feel stuck with this garnishment.  Any tips or advice?

  • Keep a record of the amounts paid toward the judgment. 
  • The judgment adds interest.  This means the longer it takes to pay it off, the more it will cost you.  If you have the opportunity to pay off the judgment, pay it off.
  • When the judgment is paid off, be sure to obtain a letter from the collector that the judgment has been satisfied.  Keep that letter in your files.
  • If you have more than one judgment and other debts, you might want to consider filing Bankruptcy.  Bankruptcy will allow you to eliminate most or all of your debts.  It will stop garnishments.  Contact us today to see if this a viable option for your situation.

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.

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Wed, 29 May 2013 12:34:23 GMThttp://www.protectingconsumerrights.com/blog/2013/5/29/garnishment-how-did-this-happen/
The Old Debt Dilemma - To Pay or Not To Payhttp://www.protectingconsumerrights.com/blog/2013/5/28/the-old-debt-dilemma-to-pay-or-not-to-pay/One of the most popular questions from consumers Justice _scaleis do I have to pay an old debt?  It is the old debt dilemma - to pay or not to pay. 

TO PAY:  If you incurred the debt, the collector can continue to seek payment until it is satisfied.   The debt will fall off your credit report after 7 or 10 years, depending on the type of debt (link this to the "types of debt" page on website.  The collector can file a lawsuit to collect the debt and obtain a judgment against except if the debt is old (read section below).  Once a creditor or collector has a  judgment, your wages and/or bank account can be garnished and they can file a lien on property.   Thus, if some of the above circumstances exist, it is likely in your best interests to pay the debt, or make arrangements to pay the debt.

NOT TO PAY:  This occurs when the debt is old and the collector can no longer sue you to collect the debt.  To determine if your debt is old enough, you need to check the statute of limitations in your state.   Every state has a statute of limitations.  View our website or call us today to find out about your state rules.  The Statute of Limitations governs how long the creditor or collector can sue you.   The clock starts ticking approximately 180 days after default.  Default is the missed payment.  Beware, depending on the state you reside in, if you make another payment the clock may start ticking again.  Therefore, check to see when you last made a payment for that account.  The collector cannot sue you or make threats to sue you if the debt the Statute of Limitations has expired.  If the collector uses such tactics (link to blog Threats from Collectors), they are violating your rights under the Fair Debt Collection Practices Act.  You can sue them and earn up to $1000 for violations.   The attorneys'  fees are paid by the Defendant, therefore, there is no out of pocket costs for the consumer.  For good results and success stories, click here

If you are annoyed by the collection calls or are unsure that this debt was yours, you can simply write to the collection agency disputing the debt and instruct them to stop contacting you.  Send your letter certified mail and keep a copy for your files.  You can check out our sample letter and modify it to fit your situation.

There are some special circumstances that you should keep in mind with debts in general.

  • Threats of Lawsuit:
    A debt collector can not make empty threats.  Unless a collector truly has an intention on filing a lawsuit against you, they cannot threaten to do so.   Read blog Threats From Collector.
  • Payment Plans:
    Creditors and debt collectors are not required to set up a payment plan.  Even if you have been making regular  payments to a hospital, your account can be sent to a collection agency.
  • Medical Debts:
    With medical debts that should have been covered by health insurance, you need to make sure that gets processed correctly and timely with your health care provider and insurance company. If you see something not right, be proactive and make sure the bill is covered by your health insurance.  Many times the bill is coded incorrectly and is rejected by the insurance company.  Then the consumer finds out too late to file it with their insurance company and gets stuck with the paying the bill. 
  • Student Loans:
    Federally funded student loans are treated differently.  See our website.  Once you take out a federally funded student loan, you are stuck.  There are a few limited exceptions such as extreme financial hardship and total and permanent disability.  Check out this Department of Education website to learn more.  Collectors for federally funded student loans can garnish your wages without obtaining a judgment first. . 

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

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Tue, 28 May 2013 11:28:12 GMThttp://www.protectingconsumerrights.com/blog/2013/5/28/the-old-debt-dilemma-to-pay-or-not-to-pay/
Medical Debts on Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/5/15/medical-debts-on-your-credit-report/When faced with health issues, most consumers, even those with insurance, Past _due _imghave a difficult time paying off medical bills that are not covered under your policy.  Even with good financial planning the common consumer would find it difficult to paying off these exorbitant bills.  Regardless, if your medical debt goes unpaid, it ends up on your report damaging  your credit score for a long period of time.   

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

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Wed, 15 May 2013 13:42:09 GMThttp://www.protectingconsumerrights.com/blog/2013/5/15/medical-debts-on-your-credit-report/
When Collectors Communicate With Friends and/or Familyhttp://www.protectingconsumerrights.com/blog/2013/5/10/when-collectors-communicate-with-friends-andor-family/Often times, when attempting to collect a debt, Piggy _bank collectors contact friends and/or family members of the person who allegedly owes the debt, more formally referred to as "third party contact".  "Third party contact" can be done within the guidelines of the Fair Debt Collection Practices Act ("FDCPA").  However, there are limits to these contacts, and a debt collector needs to be extremely careful when making contact with a third party.     

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. 

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Fri, 10 May 2013 10:08:45 GMThttp://www.protectingconsumerrights.com/blog/2013/5/10/when-collectors-communicate-with-friends-andor-family/
The Fair Credit Billing Act Continuedhttp://www.protectingconsumerrights.com/blog/2013/5/6/the-fair-credit-billing-act-continued/In light of the fact that the Fair Credit Billing Act ("FCBA") Justice _scaleis such a lengthy statute, I thought it best to break it up into two discussions.  While last week's blog focused on "billing errors", the most in depth topic of the statute, today's blog is dedicated to the additional regulations of the FCBA and how the Act is enforced.
 
In addition to fashioning an outlet for consumers to deal with billing discrepancies, the FCBA contains several other regulations.  First, the FCBA requires creditors to submit billing statements at least fourteen days prior to the payment due date for open end credit accounts and to provide a reasonable grace period prior to adding finance charges.  For credit cards, statements must be sent at least 21 days before your payment is due.  Second, the FCBA prohibits merchants from offering a discount to consumers who pay by cash or check instead of by credit card.  The Act also, requires that when you open a new account, the business must provide you with a written explanation of your right to dispute billing errors and further requests merchants to credit all payments to your account on the date they are received.  The FCBA generally prohibits banks from using money in a checking or savings account to pay off the delinquent balance of a credit account held at the same bank.  

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

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Mon, 06 May 2013 15:34:47 GMThttp://www.protectingconsumerrights.com/blog/2013/5/6/the-fair-credit-billing-act-continued/
The Fair Credit Billing Acthttp://www.protectingconsumerrights.com/blog/2013/5/3/the-fair-credit-billing-act/The Fair Credit Billing Act ("FCBA") is a federal law Stop -the -harrassmentdesigned to protect you from unfair credit billing practices.  The FCBA applies to open ended credit accounts, such as credit cards, department store cards and revolving credit accounts-a line of credit where your balance and monthly payment fluctuate.  This Act provides guidelines for both consumers and creditors to manage disputes regarding billing statements.  Specifically, the FCBA provides an outlet for consumer regarding billing disputes for merchandise purchased and for complaints about the quality of goods and services.     

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.       

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Fri, 03 May 2013 14:41:33 GMThttp://www.protectingconsumerrights.com/blog/2013/5/3/the-fair-credit-billing-act/
The Electronic Fund Transfer Acthttp://www.protectingconsumerrights.com/blog/2013/5/3/the-electronic-fund-transfer-act/Continuing my discussion of the importance of your credit report , Piggy _bankthe focus of today's blog is on the Electronic Fund Transfer Act ("EFTA").  The EFTA was passed in 1978 to establish consumers' rights and responsibilities of all participants in electronic funds transfer activities.  The Act applies to electronic fund transfers, such as those involving automatic teller machines (ATMs), point-of-sale debit transactions and other electronic banking transactions.  It is important to review your electronic fund transfer (EFT) account statements regularly as these documents may contain mistakes that reflect improper transfers and could damage your credit score

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.

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Fri, 03 May 2013 13:54:02 GMThttp://www.protectingconsumerrights.com/blog/2013/5/3/the-electronic-fund-transfer-act/
What is My FICO Score and How is it Calculated?http://www.protectingconsumerrights.com/blog/2013/4/26/what-is-my-fico-score-and-how-is-it-calculated/The FICO Score is a credit score most lenders use to Past _due _imgdetermine your credit worthiness and whether you are a credit risk, so to speak.  Your FICO Score is a number that is calculated by combining pieces of your credit history from your report. This information is grouped into five different categories using percentages to reflect the importance of each piece of data.  Your FICO Score considers both positive and negative information contained in your credit report.  Obviously, late payments and other negative information will lower your FICO Score, but establishing or re-establishing a good track record of making timely payments will help raise your score over time. 

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.

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Fri, 26 Apr 2013 11:05:01 GMThttp://www.protectingconsumerrights.com/blog/2013/4/26/what-is-my-fico-score-and-how-is-it-calculated/
The Importance of the Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2013/4/24/the-importance-of-the-fair-credit-reporting-act/The Fair Credit Reporting Act ("FCRA") is a federal law Piggy _bankthat regulates the use of consumer credit and other background information.  The FCRA was created to ensure the distribution of accurate information about each consumer and provide adequate notice and information to consumers whose credit or employment is affected by the information collected and disseminated.  Today, in our strained economy, your credit is more essential than ever to staying adrift and it is important to know your rights under the law.  Plus, with many more companies performing background checks on potential employees, because of the ease of obtaining this information, it is crucial to know what information is out there about you.  It can cost you a job.

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. 



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Wed, 24 Apr 2013 11:44:24 GMThttp://www.protectingconsumerrights.com/blog/2013/4/24/the-importance-of-the-fair-credit-reporting-act/
What Constitutes "Harassment" in High Volume Callers Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/4/22/what-constitutes-harassment-in-high-volume-callers-under-the-fdcpa/Under Section 1692d of the Fair Debt Collection Practices Act ("FDCPA") Justice _scalea collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt.  This conduct includes but is not limited to, causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse or harass any person at the called number.  15 U.S.C. § 1692d(5).
 
It appears the biggest issue with compliance under the FDCPA is abiding with the sections of the statute that are ambiguous…where should a collector draw the line and whose interpretation should be used to determine when that imaginary line has been crossed?  This question often accompanies the discussion of what constitutes repeated and continuous contact as set forth in Section 1692d(5).  In this grey area who determines what amounts to repeated and continuous contact, the consumer or the collector?      

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. 

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Mon, 22 Apr 2013 12:22:28 GMThttp://www.protectingconsumerrights.com/blog/2013/4/22/what-constitutes-harassment-in-high-volume-callers-under-the-fdcpa/
Being Sued for a Debt - Review Your Optionshttp://www.protectingconsumerrights.com/blog/2013/6/3/being-sued-for-a-debt-review-your-options/You are being sued for an old debt.  What should you do?  Justice _scaleYou are overwhelmed and need some advice. 

Why are you being sued? 
The purpose of the lawsuit being filed by the creditor or collector's attorneys is because they ultimately want to seek a judgment against you and then garnish your wages or attach to certain assets of yours.  

What happens if I ignore the lawsuit?   
If you ignore the lawsuit, you will be held in default and a judgment will be entered against you.  Once the creditor or collector has a judgment, they will be able to garnish your wages or bank account. 

What are my options?

Can you afford a lawyer?
Many consumers make the assumption that hiring and paying for a lawyer to defend a lawsuit is far too expensive.  You don't know this until you ask.  There are many law firms out there (SmithMarco, P.C. for instance) that would be willing to help a consumer in this situation, and would be willing to work out a reasonable fee and an easy payment option.  The money spent on a lawyer can save hundreds or even thousands more that could be paid to the creditor.

Respond to the lawsuit
Read the summons and complaint carefully.  See what you need to do and if there are any deadlines.  If you have questions, call the clerk or seek local counsel or legal aid.  Each court has different rules and procedures.  Make sure you follow the court rules.  Keep copies and if you mail any written document, mail it certified mail with receipt. 

Review your defenses
The three most popular defenses include:
 1) This is not my debt.
 2) This is my debt, but it has been paid in full.
 3) The Statute of Limitations has expired and the collector can not sue me for this debt. 

Settle before the court date
Contact the collector and see if they are willing to settle out of court.  If you can reach a settlement, be sure to get it in writing.  A settlement is a better option than a judgment.  With a settlement, the collector can not garnish your wages or bank account.  Plus, you will avoid the court fees and interest that comes with a judgment. 

Hire an attorney
If you are being sued for debt $5000 or greater, consider hiring an attorney.   This will be less stressful on you and it might work out to your benefit both emotionally and financially.  You should call around and find an attorney who will provide a free consultation.
If you are being treated unfairly by the collector, your rights under the Fair Debt Collection Practices Act might be violated.  Under the Fair Debt Collection Practices Act, a debt collector CANNOT:

  • Use any profane language or any language that is harassing and abusive (FDCPA 15 U.S.C. 1692d)
  • Engage in any conduct, the natural consequence of which is to harass, abuse or oppress. ( FDCPA 15 U.S.C. 1692d)
  • Make any misrepresentations of fact, such as how much is owed, or certain actions they may take to force payment( FDCPA 15 U.S.C. 1692e)
  • Threaten arrest or criminal prosecution ( FDCPA 15 U.S.C. 1692e)

If a debt collector has engaged in any of the above conduct that is not allowed by the FDCPA statute of limitations, or has been deceptive to you in any other way, contact our office for a free case review.

File for Bankruptcy
If this debt is for a large sum or you have multiple debts, it will make sense to consider bankruptcy for the following reasons:

  • Give you a fresh start by eliminating most or all of your debts.
  • Force creditors and collectors to leave you alone.
  • Stop any garnishments that are proceeding or about to begin.
  • Place a stop on any lawsuits pending against you.
  • Have all outstanding balances removed from your credit report. The fact that you filed for personal bankruptcy may appear on your credit file, but the creditors must report that the balance owed on the account is zero).

What if you do not work, will the judgment affect you? Maybe, maybe not.
Income from social security, disability payments and unemployment can not be garnished.  These assets are exempt funds.
Review your assets.  Do you have a house or vehicle or a savings account?  If you have a judgment against you,  the collector can file a lien against your property and/or freeze your bank account.

When you're being pursued by debt collectors or 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.

 

 

 

 

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Mon, 03 Jun 2013 14:05:19 GMThttp://www.protectingconsumerrights.com/blog/2013/6/3/being-sued-for-a-debt-review-your-options/
Proposed Amendments to FCRA for Reporting Medical Debthttp://www.protectingconsumerrights.com/blog/2013/6/5/proposed-amendments-to-fcra-for-reporting-medical-debt/A bill introduced to Congress this past week would allowPast _due _img consumers who are behind on their medical bills up to 120 days to work out a payment plan with debt collectors prior to the debt being reported on their credit file.  This proposed amendment before Congress, called the Accuracy in Reporting Medical Debt Act, would allow debtors a grace period within which the debtor could prove the debt was inaccurate, work with the medical provider or insurance company to resolve the account or apply for financial assistance to pay off the balance. 

If the debtor were to meet the requirements of the Act, the debt collector would be barred solely from reporting the debt to the three major credit reporting agencies, Equifax, Experian and Trans Union for 120 days, no exception, but it may continue its collection efforts.  In a previous post I discussed the Medical Debt Relief Act, a similar amendment before Congress where medical debt must be removed from a consumer's credit report no more than 45 days after repayment.  Other debts remain on your credit file even after repayment for up to 7 years.  This new amendment is aimed at targeting debt collectors under the FDCPA in addition to the protecting your credit report.  The idea behind these proposed amendments is to alleviate some of the stress consumers suffer associated with unforeseen health issues and the mass of debt ailing health often creates. 

The motivation behind this amendment is that proponents say 1 in 10 insurance claims are processed inaccurately and collectors of medical debts use this to their advantage.  Most consumers are not aware of their rights under the Fair Debt Collection Practices Act ("FDCPA") and may be coerced into making payment on a debt that they don't actually owe.  The FDCPA, allows a debtor 30 days to dispute a debt but does not require a delay in reporting the debt on the debtor's credit file.  It simply requires the account to be marked as "disputed" while the collector investigates.  Under the new amendment, debtors would have this 120 day grace period to figure out the legitimacy of the debt or work out a payment plan without the stress of a debt collector reporting the debt and destroying your credit, inevitably making it harder to obtain financial assistance.      

If passed, the Accuracy in Reporting Medical Debt Act would work in conjunction with the Medical Debt Relief Act allowing consumers a more opportunity to figure out their finances and avoid the long-term damage of ailing and unforeseen health issues.  If you are having problems with surmounting debt and are being contacted by debt collectors contact SmithMarco P.C. for a free case review.

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Wed, 05 Jun 2013 11:03:06 GMThttp://www.protectingconsumerrights.com/blog/2013/6/5/proposed-amendments-to-fcra-for-reporting-medical-debt/
Tax Liens and Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/6/5/tax-liens-and-your-credit-report/One of the most damaging credit score killers are unpaid tax liens.  Justice _scaleUnpaid tax liens can damage your score for years to come and will continue to cause damage even after they are "released" or paid.  An unpaid tax lien can remain on your credit file indefinitely per the Fair Credit Reporting Act ("FCRA"). 

A new policy proposed by the Internal Revenue Service ("IRS") suggests a trend toward removing paid tax liens from consumer reports.  Even after payment, a tax lien will continue to be reported on your credit file and can do just as much damage to your credit score as it did prior to payment.  This new policy proposes that after full payment of your lien, it should be removed from your report earlier than the statutory seven year reporting period, confirmed by all three major credit bureaus, Equifax, Experian and Trans Union.  The purpose of this policy is to aid consumers who make the effort to pay off debts.  This policy will allow responsible consumers to clean up their credit report and begin rebuilding their credit after repayment.

While I discussed in previous posts proposed amendments to the FCRA regarding removal of paid medical debt, currently, paid tax liens are the only items that would be removed from your report after payment in full.  This deletion however, is the type of conduct the credit reporting industry looks down on, as your history of timely payment should be accurately indicated on your report and ordering a deletion of an account you were delinquent on does not accurately reflect your ability to pay.         
       
It is important to note that this policy only applies to tax liens paid off in full.  So if you cannot afford to make a complete payment and you settle the lien for less than the full balance, the tradeline will still be reported on your credit file as "released" and will continue to be reported for seven years from the date it was settled.  Further, the IRS states that it is the responsibility of the consumer to request a deletion of the tradeline.  If you make full payment of your tax lien, you must write to the credit reporting agencies, similar to launching an investigation into an inaccuracy on your credit file, and request a deletion of the tradeline due to payment in full.  Providing proof of payment is highly recommended, to avoid the hassle of drafting multiple letters.    

If you have a paid tax lien on your credit report or have any issues with your credit report, contact SmithMarco P.C. for a free case review

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Wed, 05 Jun 2013 12:03:01 GMThttp://www.protectingconsumerrights.com/blog/2013/6/5/tax-liens-and-your-credit-report/
Debt Collection Calls That Never Stophttp://www.protectingconsumerrights.com/blog/2013/6/17/debt-collection-calls-that-never-stop/What is a debt collector?Past _due _img
A debt collector is a company that regularly engages in the collection of debts for another.  That means that the original creditor is not a collector for purposes of this law.  If a new creditor buys the debt from your original creditor, that new creditor can be deemed a debt collector if they bought the debt after the account was already in default.  Any person or company that takes on collecting a delinquent debt for the creditor is a debt collector.

What are your options when dealing with a debt collector?

  • Keep a call log - record the dates and times of calls, the names of debt collectors, their phone number, and content of the conversation.
  • Provide written dispute of the debt. If you received a letter from them that advises you that you can seek validation of the debt within 30 days, then do just that. Seek validation and hold the debt collector responsible for providing you proof of what you owe.
  • If you are outside of that 30 day period, that does not prevent you from disputing the debt. You can still dispute it in writing. If you do, that triggers a requirement of the debt collector to make note of that dispute if they ever report the debt to a credit bureau.
  • Send a letter to the debt collector that you wish for them to "cease and desist all communications" OR, if you disagree that you owe this debt, it's not yours, and you refuse to pay it, send a letter to the debt collector advising them that you "refuse to pay" this debt. If a debt collector calls you or tries to communicate with you after sending a letter to cease and desist or refuse to pay, contact us for a free case review.

Do you speak with the collector and if not, do they leave messages?
If the calls are disturbing, you need to find out who the responsible party is.  Find out who the caller is by answering the phone.

How can you stop the calls?
Send them a Cease and Desist letter.  This letter tells them to stop all communications.  You can check out our website for a sample letter.  Be sure to mail the letter certified mail with receipt.  It is important to have proof that the debt collector received the letter.

What are your rights as a consumer under the law? 
There is a federal law called the Fair Debt Collection Practices Act designed to protect consumers from abusive debt collectors. 

I believe my rights have been violated under the FDCPA.   What will I get if I decide to pursue an action?

  • Make the collectors stop contacting you.
  • Recover any actual damages suffered, and/or a statutory damage of up to $1,000
  • Attorneys fees and court costs

So what if my rights have been violated?  I can't afford an attorney.
You don't have to be able to afford an attorney.  Under the FDCPA, the attorneys fees are paid by the Defendant.  Call experienced attorneys at SmithMarco for a free case reviews and consultations.  If you do have a case, there is no out of pocket costs to the client at SmithMarco.  Sounds to good to believe it, read our reviews and call us today with your questions and concerns. 

 

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Mon, 17 Jun 2013 15:22:23 GMThttp://www.protectingconsumerrights.com/blog/2013/6/17/debt-collection-calls-that-never-stop/
Obligations of Employment Background Checks Under the FCRAhttp://www.protectingconsumerrights.com/blog/2013/6/26/obligations-of-employment-background-checks-under-the-fcra/As I have discussed in several posts throughout the year, Justice _scalenew amendments to the Fair Credit Reporting Act, ("FCRA") require employers and credit reporting agencies to provide additional information to potential and current employees prior to accessing a credit file for employment purposes.  Employers are also required to provide additional disclosures after taking adverse action against the individual based on the information contained in the report.
 
The FCRA is the federal law that imposes requirements on employers who use credit reports when determining whether to hire or continue employment.  With the new amendments to the law, employers must embark on a four step process using federally mandated forms.  These four steps include, certification to the consumer reporting agency, notice and authorization from the applicant, pre-adverse action protocol and adverse action protocol. 

Certification to the Consumer Reporting Agency
A credit reporting agency may furnish a consumer report for employment purposes if the employer certifies that the potential or current employee granted written authorization for the employer to do so.  The employer must state that it will use the information for employment purposes only and it will comply with the adverse action conditions should adverse action be necessary based on the information contained in the report. 

Notice and Authorization from the Applicant
The next step after certification requires the employer to notify the potential or existing employee that it plans to access the employers credit file and use the information contained in the report as a basis in its decision to hire or continue current employment.  The employee must provide the employer with written notification that it agrees to allow the employer to access his or her credit file for this purpose.   

Pre-Adverse Action Protocol
If an employer decides it may use the information contained in the consumer report to take "adverse action", an action that denies an individual credit, employment, insurance or other benefit, it must provide the employee, whether potential or current, with a copy of the report as well as a copy of " A Summary of Your Rights under the FCRA". 

Adverse Action Protocol
If based on the information contained in the consumer report, the employer decides to take adverse action against the employee it must inform the employee, whether orally or in writing, of its decision not to hire or continue employment and of the statutorily required information.  This information includes the name, address and phone number of the credit reporting agency which supplied the report; a statement that the credit reporting agency that supplied the information did not make the decision to take adverse action; and a notice of the employee's right to dispute the accuracy or completeness of any information in the report and to get an additional free report from the company that supplied the credit or other background information if requested within 60 days.

If you are having difficulty with information contained in your credit report or feel you have not been provided with proper notice of your rights during the employment process, contact SmithMarco P.C. for a free case review

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Wed, 26 Jun 2013 12:16:42 GMThttp://www.protectingconsumerrights.com/blog/2013/6/26/obligations-of-employment-background-checks-under-the-fcra/
Taking Steps to Repair Your Credithttp://www.protectingconsumerrights.com/blog/2013/5/1/taking-steps-to-repair-your-credit/Last week's blogs discussed the importance of your credit score Justice _scaleand explained how it is calculated.  See blog.  This week's blog will give you some tips to improve your score, but there is no quick fix, as restoring your credit takes time and patience.   

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.

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Wed, 01 May 2013 12:23:04 GMThttp://www.protectingconsumerrights.com/blog/2013/5/1/taking-steps-to-repair-your-credit/
Identity Theft - 10 Things You Need To Knowhttp://www.protectingconsumerrights.com/blog/2011/11/9/identity-theft-10-things-you-need-to-know/Everyone is susceptible to identity theft.  The young or old, rich or poor - be careful.  Here are 10 important tips and facts about identity theft so you can avoid becoming a victim. 

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.

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Wed, 09 Nov 2011 15:29:26 GMThttp://www.protectingconsumerrights.com/blog/2011/11/9/identity-theft-10-things-you-need-to-know/
The Fair Credit Reporting Agency is NOT Just About Your Credit Reports…There’s Much Morehttp://www.protectingconsumerrights.com/blog/2013/3/6/the-fair-credit-reporting-agency-is-not-just-about-your-credit-reports…there’s-much-more/When you hear the term credit reporting agency, you typically think of the big 3 reporting agencies that report your payment history and balances; Trans Union, Equifax and Experian.  The Fair Credit Reporting Act (FCRA) provides consumers with a number of rights when it comes to dealing with a credit reporting agency including a free copy of your credit report once every year, as well as a free credit report whenever you are denied a credit opportunity. The FCRA says that no one can access your credit report  without a legal purpose, and that you can have the right to have inaccurate information on your credit reports investigated and corrected. 

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.

 

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Wed, 06 Mar 2013 22:00:19 GMThttp://www.protectingconsumerrights.com/blog/2013/3/6/the-fair-credit-reporting-agency-is-not-just-about-your-credit-reports…there’s-much-more/
Compliance When Conducting Employment Background Checkshttp://www.protectingconsumerrights.com/blog/2013/7/2/compliance-when-conducting-employment-background-checks/With the new amendments to the Fair Credit Reporting Act ("FCRA") Justice _scaleregarding employment background checks, the number of cases filed continues to grow at a rapid pace.  The Equal Employment Opportunity Commission ("EEOC"), the agency in charge of spear heading these amendments, is requiring stringent compliance of employers when accessing consumer reports, increasing the number of lawsuits filed alleging violations of the FCRA. 

In a case filed against Advance Auto Parts ("Advance") in Roanoke, Virginia a consumer alleged in a class action suit that the auto parts retailer failed to comply with the amendments to the FCRA when conducting a background check into a potential employee and then terminated him based on the information obtained in the report shortly after he began employment.  John Hamilton Stinson v. Advance Auto Parts Inc. 2012-cv-0433 (W. Dist. Virginia).
  
The case, filed in September 2012, alleged that when the plaintiff applied for a job with the auto retailer it failed to adhere to the requirements of the FCRA when conducting a background check into the applicant's criminal and credit history.  According to the plaintiff, during the hiring process, Advance failed to properly obtain his written consent to access his credit file in response to his application.  After reviewing his application, Advance hired the plaintiff and he began employment for the company.  After just 10 days of employment, Advance received information on Stinson from the background check it conducted and he was terminated based on the information contained in his report. 

The plaintiff argued Advance again failed to comply with the FCRA when it did not provide the consumer with a copy of the report used to take adverse action against him.  The consumer report Advance reviewed in making the decision to terminate the plaintiff included several felony convictions of a person with the same last name and did not in fact belong to the plaintiff.  The lawsuit went on to state that Advance frequently acted on adverse background checks without providing employees with a copy of the information contained in the report beforehand as is required by the new amendments to the FCRA.  The plaintiff said he obtained the information by contacting the background check company directly. 

The new amendments to the law specify that an employer must provide the employee with notice of its intention to perform a background check and get written consent from the employee prior accessing the consumer file.  After receiving a copy of the consumer report, the employer must provide the employee with notice that it intends to use the information contained in the report in the hiring process.  Lastly, the employer must notify the employee of his or her rights pursuant to the FCRA and provide a copy of the consumer report used, in the event it terminates employment based on information gathered from the report.  While Advance has settled the case agreeing to pay $100 each to more than 2,500 individuals who were turned down after applying for a job based on information obtained during the background check, it refuses to admit non-compliance or fault.

If you feel your rights have been violated under the FCRA during the employment process contact SmithMarco P.C. for a  free case review.   

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Tue, 02 Jul 2013 15:01:18 GMThttp://www.protectingconsumerrights.com/blog/2013/7/2/compliance-when-conducting-employment-background-checks/
Paying Off Debts: How Old Is Too Old?http://www.protectingconsumerrights.com/blog/2012/1/18/paying-off-debts-how-old-is-too-old/You recently obtained a copy of your credit report and notice an old debt that is hurting your score.  You do not know whether you should pay it. 

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. 

 


 

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Wed, 18 Jan 2012 13:36:34 GMThttp://www.protectingconsumerrights.com/blog/2012/1/18/paying-off-debts-how-old-is-too-old/
Debt Collectors Leaving Messageshttp://www.protectingconsumerrights.com/blog/2013/7/8/debt-collectors-leaving-messages/Can a debt collector leave a message on your answering Past _due _imgmachine or voice mail?  The answer really depends on a few factors.  The Fair Debt Collection Practices Act ("FDCPA") limits the conduct of debt collectors and their collection efforts, how the collector can contact you and what is said when trying to collect the debt.   The FDCPA does not specifically address answering machines or voice mails.  However, from a review of the language of the FDCPA, we can find how the law operates and how consumers are protected from these messages.

At the outset, if your answering machine is private and no one can hear the message, then the collector has likely not violated that part of the FDCPA that deals with third party disclosure of the debt.   However, if the machine is a family machine or shared with other individuals, the collector runs into a problem as to what message, if any, can be left. 

Under the FDCPA, the statute requires the collector to provide a clear and meaningful disclosure of its identity and purpose of the call.  The collector must state its name and the company it works for, that the communication is an attempt to collect a debt and that any information obtained will be used for collection purposes.   Thus, any message left on a voicemail or answering machine must make those disclosures.  If the answering machine is shared with others, however, then making that disclosure will violate the FDCPA because the others that hear the message will have been disclosed the debt.   If a message is left that does not make the disclosure, then the FDCPA is violated as well.  Therefore, it is usually better for the collector to just hang up. 

Likewise, if the collector leaves harassing or misleading messages on your machine it may also have violated the law. 
Several Federal Courts have addressed this topic and handed down decisions finding FDCPA violations for leaving messages on answering machines and/or voicemail.  In Branco v. Credit Collection Services Inc., the debt collector left a message on the consumer's parents' answering machine on five separate occasions.   10-cv-349 (E.D. California) (April 4, 2012).  The message stated,

"This is for Travis Branco.  If the intended party cannot be reached at this number, please call 800-998-5000, and we will cease further attempts to this number.  If you are not the intended party, please hang up at this time.  This message contains private information and should not be played in a manor where it can be heard by others. …(music)… This call is from CCS, Credit Collection Services.  This is an attempt to collect a debt and any information obtained will be used for that purpose.  For your privacy protection, please visit our secure website at www.warningnotice.com to access your personal account information. Your file number is 05036201574."

The outgoing message on the answering machine stated, "You have reached the Branco residence. Please leave a message and phone number so that Steve, Sari, or Travis may return your call."  The answering machine did not allow an individual listening to skip the message prior to the beep so a human caller would hear the machine belonged to a family and not simply the alleged debtor.  The alleged debtor's mother heard the message and relayed the information to her son, who was not even living at home with his parents at the time.  The District Court for the Eastern District of California found that the plaintiff's mother had no obligation to refrain from listening to a message in her own home, simply because the message was for another person.

If you are having problems with a debt collector and are interested in our assistance or would like a free case review, contact SmithMarco P.C.

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Mon, 08 Jul 2013 11:32:10 GMThttp://www.protectingconsumerrights.com/blog/2013/7/8/debt-collectors-leaving-messages/
A Collector's Duty to Disclosehttp://www.protectingconsumerrights.com/blog/2013/7/10/a-collector's-duty-to-disclose/Under the Fair Debt Collection Practices Act ("FDCPA") a collector has a duty to provide a clear and meaningful disclosure of its identity and purpose of the communication, whether verbal or in written.  The collector must state its name and the company it works for, that the communication is an attempt to collect a debt and that any information obtained will be used for collection purposes (read my post on this subject from earlier this week titled "Debt Collectors Leaving Messages"). 

In Smith v. Greystone Alliance L.L.C., the District Court for the Northern District of Illinois ruled on the issue of a collector's duty to disclosure its identity when it held that Greystone Alliance LLC ("Greystone") violated the FDCPA after placing repeated telephone calls without disclosing the collector's identity on every single occasion.  9-cv-5585 (N.D.Ill) (April 13, 2012). 

In response to the lawsuit, Greystone argued that its conduct did not violate the FDCPA after it mailed an initial dunning letter to the consumer and identified its name and purpose.  Greystone stated that its letter complied with the FDCPA when it disclosed its identity in the initial communication with Smith and it had no duty to identify itself in subsequent communications. 

After mailing the initial debt collection letter, a collector on behalf of Greystone left a message on the consumer's home phone.  In the message, the collector provided his name and the name of his employer, gave a number at which the consumer could return his call and stated the call was "in regards to a file that has been placed in [his] office."  The caller failed however to mention he was a collector attempting to collect a debt, thus violating the FDCPA, a strategy obviously used to avoid disclosing the debt to a third party by leaving a vague message.  Subsequently, the collector left a message with the consumer's business partner who actually returned the call. The collector informed the partner that the call was "personal" and the partner explained that the consumer could not be reached at that number.  Instead of deleting the number from its records, the collector added the number to the list of ways to contact that consumer.

Over the next several weeks, Greystone continued to contact the consumer sometimes hanging up and sometimes leaving voicemail messages.  Greystone employees were required to use a script when calling to collect a debt and were directed to never mention the collector was calling to collect a debt or that the caller was in fact a debt collector, both of which are directly in violation of the FDCPA.  In conclusion, the court rejected Greystone's argument that the collector's initial disclosure letter was sufficient to satisfy the requirements of the FDCPA and explained that compliance with the duty to disclose must take place in every single conversation and in every single written communication.

If you are having problems with a debt collector or have any questions relating to debt collection contact SmithMarco P.C. for a free and confidential case review.

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Wed, 10 Jul 2013 16:05:29 GMThttp://www.protectingconsumerrights.com/blog/2013/7/10/a-collector's-duty-to-disclose/
Consumer Loses on Validation Letter Claimhttp://www.protectingconsumerrights.com/blog/2013/7/12/consumer-loses-on-validation-letter-claim/While I always try to write to you about the success stories of consumers Past _due _imgthat stood up for their rights, I also have to give the bad news on occasion.  Thus, today's blog is about a recent decision that came out badly for the consumer.   In Zememckis v. Global Credit & Collection Corp. on appeal, the Seventh Circuit dismissed the consumer's claims stating she failed to state a valid claim under the Fair Debt Collection Practices Act ("FDCPA"). 

The basic facts of the case show that in March of 2010 Zemeckis owed money to Capital One Bank who in turn hired Global Credit & Collection Corp. ("Global") to collect the debt on its behalf.  In its collection attempts Global sent Zemeckis an initial collection letter with notice of her right to request validation of the debt.  Zemeckis argued that the language used in the letter and repeated threats of legal action against her overshadowed the language required under the statute informing her that she had thirty days to dispute the validity of the debt and request validation.  The letter "urge[d] [her] to take action now," and to "[c]all [Global's] office today...."  The letter also stressed Capital One Bank's right to file suit against Zemeckis, warning that "[her] account now meets ... [the] guidelines for legal action" and that "Capital One Bank (USA), N.A. may be forced to take legal action."  With the validation notice written on the back side of the letter, Zemeckis argued that Global's letter masked her right to seek validation as required by the FDCPA.

Zemeckis argued Global violated Section1692g of the FDCPA by using threatening language in the letter which overshadowed her right to seek validation.  The district court disagreed and dismissed her claim.  Zemeckis appealed the district court's ruling to the Seventh Circuit but had the same result.  Global's initial collection letter did not violate the FDCPA and Zemeckis' case was dismissed. 

Under Section 1692g, a debt collector's initial letter to a debtor must contain:
(1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, 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 or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.  15 U.S.C. § 1692g(a).  Zemeckis argued that under her interpretation of the statute the letter was misleading, however on appeal the Seventh Circuit could not agree.  In conclusion, the Court stated that while it by no means wishes to applaud Global's initial collection letter, it does not feel that its letter rose to a level of violation of the statute.

If you are having issues with debt collection and need assistance contact SmithMarco P.C. for a free case review

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Fri, 12 Jul 2013 13:00:45 GMThttp://www.protectingconsumerrights.com/blog/2013/7/12/consumer-loses-on-validation-letter-claim/
Federal Trade Commision Shuts Down a Texas Based Collection Agencyhttp://www.protectingconsumerrights.com/blog/2013/7/17/federal-trade-commision-shuts-down-a-texas-based-collection-agency/Earlier this year, after launching an investigation into the Texas-based collection agency Goldman Schwartz, Inc., the Federal Trade Commission ("FTC") makes the decision to file suit against the collector for violations of the Fair Debt Collection Practices Act ("FDCPA").  The Texas U.S. District Court ordered the agency to close its doors after allegations of harassment, lies and threats were made against consumers to collect debts owed for payday loans.  The collection agency collected debts for Ace Cash Express, Advance America, Allied Cash Advance, Checkmate, First Cash Advance and MoneyMart.  The court also froze all of Goldman Schwartz's assets and banned them from engaging in any collection activity while the FTC moves forward with its case.

The FTC alleges that collectors working on behalf of the agency, falsely threatened arrest and imprisonment and even went so far as to tell consumers that failure to make payment would result in their children being taken into government custody.  A report to the FTC stated the agency went so far as to tell a Virginia woman that she would be arrested, sentenced to jail for three years and would lose her disability payments for failure to make payment on a $980 debt.  In addition to threatening its debtors, collectors disclosed information regarding debts to consumers' family members and fellow military officers.  The agency allegedly represented itself to consumers as a law firm capable of filing suit or inferred it was affiliated with the local sheriff's office and collected late fees and attorneys' fees it was not entitled to receive.  

The complaint specifically charged Goldman Schwartz with violations of the FDCPA including:

  • claiming that consumers committed crimes by not paying their debts resulting in arrest or imprisonment;
  • claiming to work in conjunction with law enforcement agencies;
  • claiming Goldman Schwartz is a law firm and not disclosing it is actually a collection agency;
  • using harassing, obscene or profane language, placing repeated and continuous calls to consumers with the intent to harass
  • calling at hours before 8:00 a.m. and after 9:00 p.m.;
  • adding unauthorized late fees and attorney's fees to the amount consumers allegedly owed; and
  • not disclosing a consumers' right to dispute a debt and to request validation.

If you believe you have been the victim of an abusive debt collector or have any questions regarding debt collection contact SmithMarco P.C. for a free case review

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Wed, 17 Jul 2013 12:15:05 GMThttp://www.protectingconsumerrights.com/blog/2013/7/17/federal-trade-commision-shuts-down-a-texas-based-collection-agency/
Recent Case Provides Disputes Do Not Have to be in Writinghttp://www.protectingconsumerrights.com/blog/2013/7/17/recent-case-provides-disputes-do-not-have-to-be-in-writing/I started the week discussing case law that did not have a favorable result for consumers so I figure it a good idea to following it up with a recent appellate decision that ends on a positive note.  In the case of Hooks v. Forman, Holt Eliades Ravin LLC, plaintiffs Karen Hooks and Geraldine Moore filed suit against a collection agency alleging violations of the Fair Debt Collection Practices Act ("FDCPA") when a collector sent a notice to the consumers stating they could only dispute the validity of the debt in writing, violating Sections 1692a(6) and 1692g.  Initially, the case was dismissed, but on appeal the order of dismissal was vacated and the case was reinstated . 

The facts of the case begin in December of 2009 when the plaintiffs, Karen Hooks ("Hooks") and Geraldine Moore ("Moore"), visited Atlantic City, New Jersey and attended a time share presentation with Wyndham Vacation Resorts, Inc. ("Wyndham").  At the end of the presentation Hooks and Moore signed an agreement with Wyndham to purchase a timeshare but did not realize that the document they were signing was a mortgage application.  Hooks and Moore never made a single payment on the timeshare.  After not receiving payment, Wyndham hired Forman Holt Eliades Ravin LLC ("Forman") to collect the timeshare debt from Hooks and Moore.  On April 5, 2011, Forman sent an initial collection letter to the Plaintiffs at their home address.  The letter read as follows: 

UNLESS YOU NOTIFY U.S. IN WRITING WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THIS LETTER THAT THE DEBT, OR ANY PART OF IT, IS DISPUTED, WE WILL ASSUME THAT THE DEBT IS VALID. IF YOU DO NOTIFY U.S. OF A DISPUTE, WE WILL OBTAIN VERIFICATION OF THE DEBT AND MAIL IT TO YOU. ALSO UPON YOUR WRITTEN REQUEST WITHIN THIRTY (30) DAYS, WE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR IF DIFFERENT FROM WYNDHAM.

After receiving the collection letter Hooks and Moore filed suit in the District Court for the Southern District of New York, alleging that the collection letter failed to comply with 15 U.S.C. § 1692g.  This section requires a debt collector to send written notice to consumers within 5 days of verbal communication.  Section 1692g(a)(3) requires that this notice contain "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector."  Hooks and Moore argued that the notice violated § 1692g(a)(3) because it indicated that a request for validation of the debt must be made in writing and cannot be verbal.

Forman filed a motion to dismiss the complaint and its motion was granted when the court stated the collection agency did not violate the FDCPA by stating disputes must be made in writing.  Hooks and Moore appealed the decision and in May of 2013, the appeals court vacated the dismissal.  In its opinion, the appeals court stated the language of the statute does not have a written requirement as it does in other sections of the same statute.  "The right to dispute a debt is the most fundamental of those set forth in § 1692g(a), and it was reasonable to ensure that it could be exercised by consumer debtors who may have some difficulty with making a timely written challenge."  The Court went on to state, "[d]ebtors can protect certain basic rights through an oral dispute, but can trigger a broader set of rights by disputing a debt in writing."

If you are having issues with debt collection or need more information on your rights, contact SmithMarco P.C. for a completely free case review.

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Wed, 17 Jul 2013 12:55:54 GMThttp://www.protectingconsumerrights.com/blog/2013/7/17/recent-case-provides-disputes-do-not-have-to-be-in-writing/
CFPB Holds Banks Accountable Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/7/19/cfpb-holds-banks-accountable-under-the-fdcpa/A new regulation passed by The Consumer Financial Protection Bureau ("CFPB") will hold banks accountable for their conduct when collecting debts under the Fair Debt Collection Practices Act (FDCPA").  Previously, only third party collection agencies and not original creditors, were forced to comply with the standard of conduct required under the Act.  Under this regulation, banks can be held accountable for conduct and may be subject to fines for collection tactics that violate the law

Director of the CFPB, Richard Cordray, stated that it is time to hold all parties responsible for collecting debts to the same standard as we hold collection agencies when using deceptive, unfair or abusive collection practices.  The FDCPA has been in existence since 1977 and there is no reason an original creditor should be allowed to mistreat consumers solely because it is not a collection agency and not subject to the laws of the FDCPA.    

This new regulation is meant to serve as a warning to banks to tread carefully and comply with the FDCPA when collecting theirs debts from consumers.  The reason for the additional regulation comes following a steadily increasing number of complaints received by the CFPB and the Federal Trade Commission ("FTC") from consumers on how they were treated by original creditors collecting debts.  Specifically, last year it was reported that several banks engaged in illegal tactics when collecting credit card debts that included refusal to verify debts and falsely representing the amount of debt owed from consumers.  The new regulation aims to stop this harassment and force banks to be held accountable for their conduct and give back consumers the right to be treated fairly.
 
If you are having problems with debt collection contact SmithMarco P.C. for a free case review.

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Fri, 19 Jul 2013 09:52:52 GMThttp://www.protectingconsumerrights.com/blog/2013/7/19/cfpb-holds-banks-accountable-under-the-fdcpa/
Common Debt Collection Questionshttp://www.protectingconsumerrights.com/blog/2013/7/24/common-debt-collection-questions/In the literally thousands of consumers that we have assisted here at SmithMarco, PC and our Protecting Consumer Rights website, we have seen what the most popular questions or concerns are about collections.  Here we answer them for all:

When can a debt collector contact me?
Under the Fair Debt Collection Practices Act ("FDCPA") the federal statute specifically states that a debt collector may not contact you before 8:00 a.m. or after 9:00 p.m.  Furthermore, the law states that a collector may not contact you at a time [or place] that is inconvenient for you, so if you advise the collector that he or she is not allowed to call at a certain time and the collector ignores your request, the conduct is considered a violation of the statute too. 

Can a debt collector leave a message on my answering machine or voicemail?
The answer to this question is yes, BUT the collector must be very careful here.  If a debt collector contacts you and leaves a message then the collector must disclose his or her identity and disclose that the purpose of the call is to collect a debt.   However, if the message is heard by a third party (friend or family member that is not a spouse) then the collector has violated the statute and may be held accountable for the conduct. 

How often may a collector contact me? 
Section 1692d(5) of the FDCPA states that a debt collect may not "engag[e] any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse or harass."  While the statute does not specifically state how much is too much, a few times a week is likely considered a reasonable amount of contact while a few times a day is likely considered to cross the line and violate the law. 

Can a collector continue to contact me if I don't owe the debt?
If you notify the collector in writing that you do not owe the debt and you request that the collector cease all communication with you, then the collector cannot continue to contact you until it provides you with proof that it believes the debt to be yours. 

Can a collector contact me at my place of employment?
As stated above, the FDCPA prohibits debt collectors from contacting debtors at inconvenient or unusual places. The law goes on to specifically state that a collector cannot call a consumer at their place of employment if the collector has some notice that the consumer cannot accept those calls at work.   Thus, make sure to communicate this with the collector and once he or she is put on notice the calls to your job must stop or the collector has violated the law.  

Can a collector garnish my wages?
The simple answer to this question is yes, but only after he or she has successfully sued you, obtained a judgment against you,  and served your employer with a court order granting the garnishment.  In other words, a collector cannot garnish your wages if you do not make payment on the debt without first serving you with a lawsuit and then winning the case against you.   

Can I go to jail for not paying my debts?
Quite simply, NO.  You cannot be put in jail for owing a consumer debt and a debt collector who threatens you with jail time is violating the FDCPA.   Some consumers have come to us stating that they were, in fact, jailed because of the debt. This is not true.  If ever a person finds themselves being taken in because of a debt, I assure you that they are not being taken in because they owe money.  Chances are that the consumer was served an order by a court to appear to testify regarding what assets they may have to pay off a debt.  But the consumer ignored the notice and refused to go to court despite the judge specifically requesting them to appear.  If someone ignores the judge and don't show up when requested, then the judge may hold them in contempt of court, and issue a bench warrant to have the person brought in.  That is, the person is being brought in for ignoring the judge, not because the debt is owed. 

If you are having problems with debt collection or have any questions regarding your involvement with a debt collector contact SmithMarco P.C. for a free case review.

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Wed, 24 Jul 2013 10:34:54 GMThttp://www.protectingconsumerrights.com/blog/2013/7/24/common-debt-collection-questions/
Disputed Accounts Reported on Your Credithttp://www.protectingconsumerrights.com/blog/2013/3/22/disputed-accounts-reported-on-your-credit/Pursuant to the Fair Credit Reporting Act ("FCRA") Justice _scaleupon receiving notice of a dispute from a consumer regarding inaccurate information on a credit report, the credit reporting agency ("CRA") and furnisher of the account have a duty to conduct a reasonable investigation into the dispute within 30 days and report back to the consumer with the results.  The law is clear that the CRA in conjunction with the furnisher of the account must conduct a reasonable investigation and either verify if accurate, update or delete the account information complained of.

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.  

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Fri, 22 Mar 2013 14:35:47 GMThttp://www.protectingconsumerrights.com/blog/2013/3/22/disputed-accounts-reported-on-your-credit/
Collectors Call Your Friends, Family and Co-Workershttp://www.protectingconsumerrights.com/blog/2013/3/15/collectors-call-your-friends,-family-and-co-workers/Pursuant to the Fair Debt Collection Practices Act ("FDCPA"), Justice _scaleas a general rule, debt collectors are prohibited from communicating with third parties regarding your debt. There are however a few exceptions to this rule, but still require the collector to honor the debtor's privacy. For the most part, collectors cannot contact your friends, neighbors, employers, co-workers and even most of your family members when attempting to collect a debt withstanding the few exceptions.

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.

 

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Fri, 15 Mar 2013 15:46:45 GMThttp://www.protectingconsumerrights.com/blog/2013/3/15/collectors-call-your-friends,-family-and-co-workers/
The Statute of Limitations and Knowing When To Pay Your Debthttp://www.protectingconsumerrights.com/blog/2013/3/15/the-statute-of-limitations-and-knowing-when-to-pay-your-debt/If you have old debt, it is important to know that a debt collector Past _due _imgmay not file a lawsuit against you or report a debt on your credit report.  This is because the law limits the number of years a collector may sue you to collect a delinquent debt. The time period to file suit is known as the statute of limitations and varies according to both the state and type of debt owed. After the time period has passed, your debts are considered "time-barred" and while a collector may still make attempts at collection, it may no longer file suit. Under certain circumstances, the clock may be reset, and the time period may start anew making it important to know you rights under the Fair Debt Collection Practices Act ("FDCPA").

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.

 

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Fri, 15 Mar 2013 15:08:09 GMThttp://www.protectingconsumerrights.com/blog/2013/3/15/the-statute-of-limitations-and-knowing-when-to-pay-your-debt/
Kmart Settles FCRA Class Action Lawsuit for $3 Millionhttp://www.protectingconsumerrights.com/blog/2013/3/11/kmart-settles-fcra-class-action-lawsuit-for-$3-million/The Fair Credit Reporting Act ("FCRA") requires employers Justice _scaleto adhere to the adverse action procedures when notifying applicants that they have been denied employment when using background checks to make hiring decisions.  In simple language, what this means, is that if you apply for a job and are not hired based on information obtained in your background check, the employer must send you a notification letter.  That letter must advise you that the adverse action was taken , in part, due to information on a consumer report that was obtained about you.    In the absence of following these strict guidelines, on January 25, 2013, retailer Kmart settled an employment class action lawsuit for $3 million after allegedly failing to provide applicants with an adverse action letter.

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.

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Mon, 11 Mar 2013 16:16:39 GMThttp://www.protectingconsumerrights.com/blog/2013/3/11/kmart-settles-fcra-class-action-lawsuit-for-$3-million/
Understanding the Equal Credit Opportunity Acthttp://www.protectingconsumerrights.com/blog/2013/3/1/understanding-the-equal-credit-opportunity-act/The Equal Credit Opportunity Act ("ECOA") 15 U.S.C. § 1691 et seq. Past _due _imgis a United States law enacted in 1974, that makes it illegal for a creditor to discriminate against a credit applicant on the basis of race, color, religion, national origin, sex, marital status, age or because you receive public assistance.  The ECOA applies to any person who, in the ordinary course of business, regularly participates in a credit decision, including banks, retailers, credit card companies, finance companies and credit unions.  Failure to comply with the rules and regulations of the ECOA may subject a creditor to actual and punitive damages as high as $10,000 in an individual suit and up to $500,000 in a class action. 

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.   

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Fri, 01 Mar 2013 15:04:25 GMThttp://www.protectingconsumerrights.com/blog/2013/3/1/understanding-the-equal-credit-opportunity-act/
Three Steps to Handling Identity Thefthttp://www.protectingconsumerrights.com/blog/2013/2/27/three-steps-to-handling-identity-theft/Identity theft is a very real and serious crime that is rapidly growing. Piggy _bank It happens when a person, whether known or unknown, steals your identity and uses your personal information without your knowledge and/or permission to open accounts and borrow money in your name.  Identity theft can destroy your financial reputation and can cost both time and money to repair your good name.  While the federal government has enacted several laws to protect you from the devastating effects of identity theft, you must take action on your own behalf to protect your credit worthiness after the damage has already been done.  Below are three simple steps to put you back on track to repairing your credit worthiness.
 
Step One: 
Place an initial fraud alert on your credit report
As explained in a post earlier this week, in 2003, the federal government amended the Fair Credit Reporting Act ("FCRA") to include the Fair and Accurate Credit Transactions Act ("FACTA") which set more stringent guidelines in protecting consumers from identity theft both before and after it happens.  Under this new amendment, you are entitled to place an initial fraud alert on your credit report.  The three major credit reporting agencies, Experian, Equifax and Trans Union, keep detailed records of your credit history and must be put on notice if your identity has been compromised.  Under FACTA, you have a right to notify the credit reporting agencies that your information has been misused and in response, they must reflect this on your report which will notify any credit grantor and/or existing creditor of your situation. 

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.

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Wed, 27 Feb 2013 13:55:29 GMThttp://www.protectingconsumerrights.com/blog/2013/2/27/three-steps-to-handling-identity-theft/
Credit Card Receipts and FACTAhttp://www.protectingconsumerrights.com/blog/2013/2/27/credit-card-receipts-and-facta/Earlier this week, we discussed the 2003 amendment Justice _scaleto the Fair Credit Reporting Act ("FCRA") called FACTA, the Fair and Accurate Credit Transactions Act.  Last year an issue based on the statute came before the Northern District of Illinois and the Court was forced to decide on summary judgment whether distributing a copy of a merchant's receipt to a customer with an expiration date could be considered a violation of the Act. 

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. 

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Wed, 27 Feb 2013 13:36:37 GMThttp://www.protectingconsumerrights.com/blog/2013/2/27/credit-card-receipts-and-facta/
Collection Agencies Banned from the Industry and Hit with a Hefty Finehttp://www.protectingconsumerrights.com/blog/2013/2/25/collection-agencies-banned-from-the-industry-and-hit-with-a-hefty-fine/The Federal Trade Commission ("FTC") was created Justice _scaleto aid consumers in preventing the occurrence of fraudulent, deceptive, and unfair business practices.  Over the last decade, the FTC has spent a considerable amount of time policing the Debt Collection Industry.  In a recent opinion of a long-running investigation, the FTC ordered collection agencies, namely Rumson, Bolling & Associates ("Rumson") to pay a combined total of $1.1 million as punishment for its conduct which violated most importantly, the Fair Debt Collection Practices Act ("FDCPA") as well as other state statutes and further, banned Rumson from conducting business in the industry entirely. 

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.  

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Mon, 25 Feb 2013 16:16:01 GMThttp://www.protectingconsumerrights.com/blog/2013/2/25/collection-agencies-banned-from-the-industry-and-hit-with-a-hefty-fine/
Buying a Used Car and Vehicle Fraudhttp://www.protectingconsumerrights.com/blog/2013/2/22/buying-a-used-car-and-vehicle-fraud/There are many issues to consider when buying a used car.  Piggy _bankIf you are purchasing a used car, review  the following tips to avoid unexpected bumps in the road.

  • 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.  

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Fri, 22 Feb 2013 16:26:07 GMThttp://www.protectingconsumerrights.com/blog/2013/2/22/buying-a-used-car-and-vehicle-fraud/
My Car is a Lemon - Or is it?http://www.protectingconsumerrights.com/blog/2013/2/22/my-car-is-a-lemon-or-is-it/Each state has its own lemon law rules.  Justice _scaleClick here to check the law in your state.  However, all consumers can be protected by federal law.  The Magnuson-Moss Warranty Act was enacted by Congress  to protect consumers when purchasing a warranted product.  Consumer products are not required to have warranties, but if one is given, it must comply with the Magnuson-Moss Warranty Act.  All new vehicles are provided a warranty by the manufacturer.  Therefore, your new car is protected.

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.

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Fri, 22 Feb 2013 13:00:54 GMThttp://www.protectingconsumerrights.com/blog/2013/2/22/my-car-is-a-lemon-or-is-it/
Harassing Collection Callshttp://www.protectingconsumerrights.com/blog/2013/2/20/harassing-collection-calls/Consumers call our law firm with many questions about Justice _scaledebt collectors.  Frequently, consumers ask what to do about harassing debt collection calls.  Here is the answer:

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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Wed, 20 Feb 2013 11:04:55 GMThttp://www.protectingconsumerrights.com/blog/2013/2/20/harassing-collection-calls/
Debt Collection and Facebookhttp://www.protectingconsumerrights.com/blog/2013/2/14/debt-collection-and-facebook/With the use of social media on the rise, more and more Justice _scalebusinesses are turning to Facebook and other social media sites to aid in their advertising.  The collection industry is no different.  Recently a case was found in which a collector reached out to a debtor by sending a message through Facebook.  Can a collector do this or is this considered a violation under the Fair Debt Collection Practices Act ("FDCPA")?   

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.



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Thu, 14 Feb 2013 11:13:05 GMThttp://www.protectingconsumerrights.com/blog/2013/2/14/debt-collection-and-facebook/
Repairing Your Own Credithttp://www.protectingconsumerrights.com/blog/2013/2/14/repairing-your-own-credit/Many consumers lives are dependent on their Piggy _bankability to maintain a strong credit standing. Those who have good credit are quick to share that information with you and those who don't are usually ashamed.  In fact, poor credit scores have launched an entire industry of credit repair companies who are willing to take money to improve your score.  While credit repair companies may be useful, we suggest you take a stab at fixing your report all on your own. 

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. 

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Thu, 14 Feb 2013 12:33:59 GMThttp://www.protectingconsumerrights.com/blog/2013/2/14/repairing-your-own-credit/
Stopping Wage Garnishmenthttp://www.protectingconsumerrights.com/blog/2013/2/14/stopping-wage-garnishment/Often times when a debt goes unpaid the original creditor Past _due _imgwill hire a collection agency to file suit against you. If successful, this suit will result in a judgment and then, likely garnishment.  Garnishment is a means of involuntarily collecting money owed on a debt after obtaining a judgment against the debtor.  The most common type of garnishment is wage garnishment, where the collector deducts money from your salary by court order.  A wage garnishment will cause 25% of your paycheck to be deducted unless state law creates exemptions allowing less to be taken.  It usually continues as long as the consumer is employed and the debt is unpaid.   The second most common is a seizing of assets in a checking or savings account.

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. 

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Thu, 14 Feb 2013 12:12:29 GMThttp://www.protectingconsumerrights.com/blog/2013/2/14/stopping-wage-garnishment/
The Fair Credit Reporting Act - When Deleted Information Re-Appearshttp://www.protectingconsumerrights.com/blog/2013/2/8/the-fair-credit-reporting-act-when-deleted-information-re-appears/Under the Fair Credit Reporting Act ("FCRA") Justice _scalethe credit reporting agencies ("CRA") are required to follow "reasonable procedures to assure maximum possible accuracy of the information" in reporting consumer information."  15 U.S.C. 1681e(b).  What this means is credit bureaus must report accurate information on its consumers and if notified that information may be inaccurate, must conduct an investigation into the claimed inaccuracy and report back to the consumer with the results of the investigation.  Should a CRA agree to delete inaccurate information, under the law it has a duty to notify the consumer if it intends to re-insert the information at a later date, however at least one Court has decided that this notice is not always necessary and not always considered an automatic violation under the statute.

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

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Fri, 08 Feb 2013 15:53:33 GMThttp://www.protectingconsumerrights.com/blog/2013/2/8/the-fair-credit-reporting-act-when-deleted-information-re-appears/
Haunted by Zombie Debthttp://www.protectingconsumerrights.com/blog/2013/2/6/haunted-by-zombie-debt/It is incredible what lengths a debt collector will go to in anPast _due _img effort to collect a debt.  Over the last several years, collection agencies have purchased what is considered junk debt from credit card companies, telecommunication companies, health club memberships, etc. for mere pennies and targeted debtors to make payment on this debt that is likely passed the statute of limitations.  This debt has become known as "zombie debt" as it is debt that is not the debtor can no longer be legally held to pay, and is as if it has risen from the dead, haunting the debtor. 

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.   

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Wed, 06 Feb 2013 12:46:45 GMThttp://www.protectingconsumerrights.com/blog/2013/2/6/haunted-by-zombie-debt/
Collection Agency Reporting a Debt on Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/2/6/collection-agency-reporting-a-debt-on-your-credit-report/Often times in an attempt to collect a debt, collectorsPast _due _img will threaten to report accounts to the credit reporting agencies if you refuse to pay.  Debt collectors use this threat as a scare tactic and it usually works as many consumers have a great deal of concern for their credit standing.  There are both permissible and impermissible circumstances in which a collector can and cannot report your debt.

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

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Wed, 06 Feb 2013 10:16:32 GMThttp://www.protectingconsumerrights.com/blog/2013/2/6/collection-agency-reporting-a-debt-on-your-credit-report/
Mortgage Foreclosures Now Considered Collection Activity Under The FDCPAhttp://www.protectingconsumerrights.com/blog/2013/1/30/mortgage-foreclosures-now-considered-collection-activity-under-the-fdcpa/In the case of Glazer v. Chase Home Finance, LLC et al , Past _due _imgthe Sixth Circuit of the U.S. Court of Appeals rendered an opinion this week adding mortgage foreclosures to the list of defined collection activities under the Fair Debt Collection Practices Act (FDCPA).  This decision by the Sixth Circuit allows consumers to now hold collection tactics involved in mortgage foreclosures to the same standards under the FDCPA as other debts. 

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

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Wed, 30 Jan 2013 12:38:51 GMThttp://www.protectingconsumerrights.com/blog/2013/1/30/mortgage-foreclosures-now-considered-collection-activity-under-the-fdcpa/
What Qualifies as a "Good" Credit Scorehttp://www.protectingconsumerrights.com/blog/2013/1/28/what-qualifies-as-a-good-credit-score/A credit score is a number that potential creditors Piggy _bankuse to determine the likeliness of paying off one's debts.  Every consumer with credit has a credit score which is determined based on the information reported on your credit report.  A credit report is run through an algorithm that calculates several factors in a credit report to produce a score.  That number can obviously change on a month-to-month basis as creditors update information on a consumer's account.  While more than one scoring model exists, the FICO score is the most widely used in in the industry.  A FICO score ranges from 300 to 850 and the higher the score the better. 

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.
 

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Mon, 28 Jan 2013 10:40:31 GMThttp://www.protectingconsumerrights.com/blog/2013/1/28/what-qualifies-as-a-good-credit-score/
Filing Bankruptcy and Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2013/1/23/filing-bankruptcy-and-your-credit-score/Filing bankruptcy is a difficult decision to make for a consumer.  Past _due _imgCommon questions you may ask yourself are:  Is bankruptcy the right decision for me?  Will I ever recover from the effects of filing?  Will it affect my credit score?  Will I be able to rebuild my credit?  If you are considering filing, the good news is, while your credit score will likely take a "hit", the negative effect is temporary and provides you with the opportunity to rebuild your credit and improve your score for the long term. 

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.

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Wed, 23 Jan 2013 13:05:25 GMThttp://www.protectingconsumerrights.com/blog/2013/1/23/filing-bankruptcy-and-your-credit-score/
Amendments to the Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2013/1/16/amendments-to-the-fair-credit-reporting-act/The Fair Credit Reporting Act ("FCRA") is the federal law Justice _scalethat governs the credit reporting agencies' conduct on consumer reporting.  As of January 1, 2013 the FCRA underwent amendments concerning the access of arrest and conviction records in employment decisions.  The FCRA imposes requirements on employers who use the credit reporting agencies to obtain reports on potential or existing employees with information regarding background checks, credit checks and previous employment history. 

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.

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Wed, 16 Jan 2013 13:56:29 GMThttp://www.protectingconsumerrights.com/blog/2013/1/16/amendments-to-the-fair-credit-reporting-act/
Knowing Your Rights Under the Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2013/1/16/knowing-your-rights-under-the-fair-credit-reporting-act/The Fair Credit Reporting Act, also referred to as the "FCRA",Justice _scale is a Federal law enacted to protect consumers and their credit reports.  This law governs how your credit worthiness can be reported, dictates who can review your credit report and gives you the right to review and dispute information reported by creditors.

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.

 

 

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Wed, 16 Jan 2013 12:48:55 GMThttp://www.protectingconsumerrights.com/blog/2013/1/16/knowing-your-rights-under-the-fair-credit-reporting-act/
The Consumers' New Years Resolutions for 2013http://www.protectingconsumerrights.com/blog/2013/1/11/the-consumers'-new-years-resolutions-for-2013/As we have turned over another calendar year, Justice _scalejust about all of us have made out our list of new years resolutions for the coming year.  In our attempts to make ourselves better we have set out our goals and hope we can take steps toward accomplishing these goals before we forget all about them, and make them anew next year. 

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.

 

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Fri, 11 Jan 2013 10:25:56 GMThttp://www.protectingconsumerrights.com/blog/2013/1/11/the-consumers'-new-years-resolutions-for-2013/
Demand for Validationhttp://www.protectingconsumerrights.com/blog/2013/1/9/demand-for-validation/After the financial pressure of the holiday season Justice _scaleits time to start worrying about all of your unpaid bills. Often times, after a bill goes unpaid for an extended period of time and the creditor's collection efforts were unsuccessful, it will enlist the help of a collection agency to do its dirty work. Once an agency begins calling, you may be wondering why it is telling you to pay a debt owed to someone else and wondering if this is legal. The simple answer to this question is yes, as long as the collector adheres to the guidelines proscribed under the Fair Debt Collection Practices Act in its attempt to collect the debt.

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.

  

 

 

 

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Wed, 09 Jan 2013 16:52:19 GMThttp://www.protectingconsumerrights.com/blog/2013/1/9/demand-for-validation/
Overview of Fair Debt Collection Rightshttp://www.protectingconsumerrights.com/blog/2013/1/9/overview-of-fair-debt-collection-rights/Discussing debt is a huge source of stress for Justice _scalealmost every individual. Using credit cards or store charges, financing an automobile, taking out a personal loan and or a home mortgage makes you a debtor and entitles you to the protection of the Fair Debt Collection Practices Act (the "FDPCA").  The FDPCA governs the conduct of collection agencies and ensures that debtors are treated fairly during collection efforts.

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.

 

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Wed, 09 Jan 2013 14:21:05 GMThttp://www.protectingconsumerrights.com/blog/2013/1/9/overview-of-fair-debt-collection-rights/
Creditors Accountablility for Collection Harassmenthttp://www.protectingconsumerrights.com/blog/2013/1/9/creditors-accountablility-for-collection-harassment/Under the Fair Debt Collection Practices Act ("FDCPA"), Justice _scalea consumer is afforded rights which protect them from unfair and/or deceptive collection practices. The FDCPA protects a consumer from the conduct of a collection agency but not from the conduct of an original creditor, the entity to which the debt was initially owed. Often times, consumers ask what they can do to protect themselves from over zealous creditors attempting to collect a debt when they are not protected by the FDCPA. There are a few instances in which a creditor can be held accountable for its actions under the FDCPA.

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.

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Wed, 09 Jan 2013 13:40:50 GMThttp://www.protectingconsumerrights.com/blog/2013/1/9/creditors-accountablility-for-collection-harassment/
Common Credit Score Misconceptionshttp://www.protectingconsumerrights.com/blog/2013/6/3/common-credit-score-misconceptions/In numerous previous posts, I have discussed both the definition and Past _due _imgthe importance of your credit score.  Your score, specific to you as a consumer, is a number that defines your credit worthiness and is used by companies to evaluate the potential risk in making the decision to lend you money and at what interest rate.  Below is a list of common misconceptions that may be detrimental to maintaining a good score or rebuilding an ailing one.

Closing My Open Accounts Will Help Raise My Score
This is the most common piece of mistaken information that consumers hear and the reality is closing accounts may harm your score further.  A closed account, even if it is in good standing will fall off your report sooner than an open one.  One factor that goes into determining your credit score is the length of time you have maintained accounts.  In other words, the longer your credit history the better your score, so those open accounts are driving up your score and closing them will not help you.    

Missing an Occasional Payment Will Not Harm My Credit Score
Missing payments is detrimental to your score and it does not take a credit expert to understand how damaging this is can be.  Your credit score is a compilation of factors that go into to calculating your number.  Your score looks at your past and present credit history to determine your creditworthiness.  Numerous late payments will reduce your score and can also act as a warning sign to potential creditors notifying them that you may be a risk and will make late payments in the future.  Your score does however, take into account how recent, how often, and how severe your late payments are, so the good news is a few late payments a few years back are not too damaging. 

Applying for the Best Credit Available Will Not Hurt My Score
The fact is the more you apply for credit the more you damage your score.  Each time you apply for credit your score is affected.  Also, lenders look into why others may have decided against extending you credit and can decide to follow suit. 

Making the Minimum Monthly Payment on Time Won't Affect My Score
While your credit history as far as making timely payments will remain intact, your credit score also consists of your debt to available credit ratio.  In other words, how much of your credit line on credit cards and loans that is used up matters.  High credit card balances relative to how much of a credit line you have will decrease your credit score .  You are better off using your credit lines in moderation if you find your balances are nearing or exceeding your maximum credit limit. 

Read some of our other blogs on credit scores:

The most important lesson for consumers to understand is that you have rights under the Fair Credit Reporting Act ("FCRA") that will protect you from inaccurate credit reporting.  If you are in need of assistance with your credit report or need help interpreting the FCRA, contact SmithMarco P.C. for a free case review.

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Mon, 03 Jun 2013 12:50:09 GMThttp://www.protectingconsumerrights.com/blog/2013/6/3/common-credit-score-misconceptions/
Your Credit Report Can Affect Your Ability to Get a Jobhttp://www.protectingconsumerrights.com/blog/2013/6/12/your-credit-report-can-affect-your-ability-to-get-a-job/As a consumer either gainfully employed, Past _due _imglooking for new employment or entering the working world, you must be aware of the information contained in your credit report and other background reports about you because your current or potential employer can use it as part of your employment background check.  Under the Fair Credit Reporting Act ("FCRA") employers are allowed to access your credit history for employment screenings and the information contained in your report can most certainly affect your ability to be hired for the job.

Under recent amendments to the FCRA, which I covered in detail in a previous post, potential employers must have your express permission to access your credit file.  When applying for a new job or gainfully employed in your current one, an employer will likely provide you with paperwork to sign, granting your permission to pull a copy of your report.  Refusing to allow an employer to review your credit history may cost you the job and the information contained your report may cost you to job too!  So prior to searching for employment, make sure you know what's on your report and begin taking the steps to clear up the information that could be hurting you.
  
It is important to understand, that the report an employer can access is not the same report you can request on yourself.  Because an employer is only allowed to look at your credit or background history, it is not provided with a copy of your credit score.  Your employment potential should have nothing to do with your score.  Also, unlike credit applications, employment applications do not negatively impact your score.

Should an employer decide not to hire you based on the information contained in your report, it must provide you with notice under the new amendments to the FCRA.  Your failure to be hired allows you to receive a free copy of your credit report much like how a credit denial entitles you to a free report.  If you did not know what was on your report prior to applying for a job, use this opportunity to find out and make the necessary corrections so you are in a better position the next time around.   

The moral of the story is, your credit report can and most likely will affect your chances of being hired.  If you are looking to get hired, make the effort to improve your credit.  Try to make all of your future payments on time and pay down as much of your credit card balances as you can afford.   

If you are having problems with your credit report and need advice or assistance in handling these issues, contact SmithMarco, P.C. for a free case review.

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Wed, 12 Jun 2013 11:29:07 GMThttp://www.protectingconsumerrights.com/blog/2013/6/12/your-credit-report-can-affect-your-ability-to-get-a-job/
Inheriting Credit Card Debthttp://www.protectingconsumerrights.com/blog/2013/6/19/inheriting-credit-card-debt/Inheriting credit card debt when a spouse dies is a stressful Piggy _bankand legitimate concern of partners at any age.  When a person dies, his or her credit card debt does not automatically disappear.  Whether the credit card company can recover the debt depends on three factors, whether or not the account had a co-signor, the amount of money and property in the deceased spouse's estate and your state's law.   

First, if the card belonged to the deceased spouse alone and the living spouse was not a co-signor or joint account holder on the account, then the debt belongs to the deceased spouse alone.  At death, the deceased spouse's estate is responsible for paying off the balance of the debt.  When the estate goes through probate, the distribution of property after a person's death, the estate representative will look at the assets and debts, and according to the law, will determine the order in which to pay off the outstanding debt.  If there is remaining assets after all debts are paid, the property will be distributed according to the deceased's will or by state law if no will was in place.   There are some states, California being one, that hold that a spouse can be liable on the credit card.  If the surviving spouse  were to received benefits from the use of the card, then they can be held liable for it. Otherwise, if the credit card debt amounts to more than the deceased's total estate and there was no co-signor or joint card holder, the credit card company must write off the debt.  The company cannot legally come after a living spouse to force payment on the account if he or she was not a joint card holder. 

In 2009, the Credit Card Act was adopted, putting a stop to credit card companies from accumulating additional fees once notified the card holder had died.  Furthermore, the Fair Debt Collection Practices Act ("FDCPA") protects the living spouse from being harassed by collectors who can often make the living spouse feel an obligation to pay when the reality is he or she has no legal obligation.    

So, when opening a credit card account alone, you are responsible to pay back the debt and you sign a contract requiring you to do so.  Upon death, it is not your spouse or family that is required to make the payment on your behalf, but your estate.  It is important to be aware of your rights as there is no guarantee that the credit card companies and/or collection agencies won't try to receive payment from you on your deceased spouse's behalf. 

If you are having problems with debt, contact SmithMarco P.C. for a free case review

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Wed, 19 Jun 2013 11:27:48 GMThttp://www.protectingconsumerrights.com/blog/2013/6/19/inheriting-credit-card-debt/
Five Credit Score Mythshttp://www.protectingconsumerrights.com/blog/2013/6/19/five-credit-score-myths/As I have discussed before in a previous post about Past _due _imgcredit scores, your credit score is made up of numerous pieces of credit data from your credit report.  It considers both positive and negative information compiled on you and is the driving force behind what type of credit you are granted.  Consumers nationwide have a hard time understanding the basic principles of a credit score and as a result believe the myths that are circulating. Below is a list of five common credit score myths with an explanation of the real facts to set you on the straight and narrow.    

Myth 1: A low credit score will follow you indefinitely
In fact, the contrary is true.  Your credit score is a temporary picture of how you fairing financially at one particular point in time.  Your score is constantly changing based on the balances of your accounts, your payment history, your credit applications, etc.  While improving your score will not happen overnight, the more time spent making timely payments and paying down balances, the faster your score will rise.  Older negative information is less detrimental to your score, so as you continue to keep abreast of your finances, your previous mistakes won't hurt you. 

Myth 2:  Your credit score alone determines whether or not you are granted credit 
Your credit score is one of several pieces of information used to make the decision whether or not to extend you credit.  In addition to your credit score, potential lenders look at your employment history, your income and your credit history.  It is the compilation of all of your information that is utilized to make a decision on whether or not to grant you credit and at what interest rate.  

Myth 3:  Applying for new credit will hurt my credit score
Applying for new credit won't harm your score unless you go to the extreme in shopping around for credit.  You are correct that every time you apply for credit it affects your score, but nothing too drastic if you are reasonable in submitting applications.  A credit inquiry will affect your score only a minimal amount.  Multiple inquiries piling up with begin to have an affect.

Myth 4:  Checking your credit report hurts your score
Fact is, checking your credit score is actually a good thing.  While your score may be affected from having a third party review your credit report, you are entitled to review your report at any time or as many times as you wish without a penalty.  Checking your report regularly is a good idea so you are aware of what is reporting and can clear up any mistakes before it is too late.    

Myth 5:  Cancelling your credit cards will boost your score
Experts agree that creditors want to see open active accounts to show you are financially responsible.  The reality is that paying your bills on time every month and not being overextended is more important for your score than having an available and unused credit line. 

If you are having issues with your credit score or have any questions about your report, contact SmithMarco P.C. for a free case review. 

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Wed, 19 Jun 2013 14:31:27 GMThttp://www.protectingconsumerrights.com/blog/2013/6/19/five-credit-score-myths/
Not All Debt Collection Activity is Illegalhttp://www.protectingconsumerrights.com/blog/2013/5/15/not-all-debt-collection-activity-is-illegal/Often times consumers complain about collection agencies andJustice _scale their collection efforts.  They complain that the collectors are abusive and harassing, and, if nothing else, overly persistent in making phone calls.  It is no secret that collectors use various tactics to coerce consumers in making payment on their debts.  It is important to know that some of these practices are illegal and cross the line established by the Fair Debt Collection Practices Act ("FDCPA") and some activities, plain and simple are NOT.  While the FDCPA clearly prohibits certain collection tactics, there are numerous activities not considered illegal despite the fact you may feel otherwise.  

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.

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Wed, 15 May 2013 11:42:26 GMThttp://www.protectingconsumerrights.com/blog/2013/5/15/not-all-debt-collection-activity-is-illegal/
Phony Debt Collectorshttp://www.protectingconsumerrights.com/blog/2013/5/15/phony-debt-collectors/The Fair Debt Collection Practices Act ("FDCPA") is a consumer-minded Piggy _bankstatute intended to protect debtors from the abusive collection practices of debt collectors.  If a collector violates the FDCPA, the debtor has various means of recourse under the law.  Under the FDCPA collectors are prohibited from using profane language or violence, making empty threats, calling excessively, charging more for a debt than is actually owed and implying they are attorneys or government officials in an effort to intimidate a consumer into making payment. 

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.  

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Wed, 15 May 2013 12:58:17 GMThttp://www.protectingconsumerrights.com/blog/2013/5/15/phony-debt-collectors/
Background Checks for Employees Fail to Comply with Recent Amendments to the FCRAhttp://www.protectingconsumerrights.com/blog/2013/5/23/background-checks-for-employees-fail-to-comply-with-recent-amendments-to-the-fcra/In a post earlier this year I discussed the Justice _scalerecent amendments to the Fair Credit Reporting Act ("FCRA") requiring businesses using background checks on existing or potential employees to put the individual on notice of its intention to use the information in making its decision in hiring or firing employees. In ensuring compliance with the new regulation, the Federal Trade Commission ("FTC") went undercover to investigate the practices used by numerous employers.  After its investigation of some 45 companies, the FTC placed several companies on notice that their speedy internet background checks were not cutting it and are likely in violation of the FCRA

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. 

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Thu, 23 May 2013 12:43:25 GMThttp://www.protectingconsumerrights.com/blog/2013/5/23/background-checks-for-employees-fail-to-comply-with-recent-amendments-to-the-fcra/
The Red Flags Rule and Identity Thefthttp://www.protectingconsumerrights.com/blog/2013/5/29/the-red-flags-rule-and-identity-theft/The Red Flags Rule was adopted in December of 2010 Justice _scaleby the Federal Trade Commission ("FTC") to help prevent identity theft.  The rule was implemented to force businesses to keep a watchful eye on any suspicious activities or "red flags" that may lead to identity theft within business operations…..simply put, it is a rule adopted by our government to protect us from the growing threat of identity theft at the corporate level.   

The Red Flags Rule only applies to financial institutions and creditors, excluding lawyers, doctors and other service providers.  Specifically, the rule applies to companies which include but are not limited to mortgage brokers, finance companies, automobile dealerships, utility companies and telecommunication companies. 

This rule sets up guidelines about how these specified businesses must operate an Identity Theft Prevention Program in an effort to keep the consumer population safe from this growing concern.  The program has four steps each companies must adhere to:  (1) the ability to identify red flags alerting the company to any potential identity theft; (2) procedures to detect these red flags; (3) prevention and mitigation of damages once a red flag is discovered; and (4) maintenance of a program in compliance with the Red Flags Rule and the ability to continue to evolve the program over time.  The government allows each company to adapt a program to fit their specific needs as long as it can assure its program is protecting its clients from the inherent risk of identity theft. 

A small percentage of the population is opposed to the Rule and feels that it may act as a cause of identity theft.  They argue that the Rule requires these specified companies to collect personal information, including social security numbers, drivers' license numbers, maiden names, previous address history, etc. from its clients which these companies would otherwise not normally maintain in its records.  The availability of this information to employees puts consumers at a greater risk of being a victim of identity theft when the information would otherwise not be made available.    

To read more about identify theft and how it effects your credit, see  Identity Theft - 10 Things You Need to Know, Identity Theft Kit, Crime of Having a Common Name, Another Horrifying Background Check Story, and When Can Debt Collectors Gain Access to Your Credit Report.

If you feel your personal information may have been compromised or you have been the victim of identity theft, contact SmithMarco P.C. for a free case review.

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Wed, 29 May 2013 11:17:19 GMThttp://www.protectingconsumerrights.com/blog/2013/5/29/the-red-flags-rule-and-identity-theft/
Reviewing Your Own Credit Reportshttp://www.protectingconsumerrights.com/blog/2013/4/2/reviewing-your-own-credit-reports/Under the Fair Credit Reporting Act ("FCRA") you are Justice _scaleentitled to one free copy of your credit report annually.  Additionally, as a consumer you are permitted to review your credit report anytime and often as you like without affecting your score.  However, when any other party reviews your report, this access, called an "inquiry", is reported on your credit file and depending on whether it is a "hard" or "soft" inquiry, will affect your score.  Credit inquiries are recorded on your report when an entity reviews your credit file.  The name of the company and the date of the inquiry are listed on your report for two years from the date of the access.   

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.

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Tue, 02 Apr 2013 15:15:06 GMThttp://www.protectingconsumerrights.com/blog/2013/4/2/reviewing-your-own-credit-reports/
The Right to Request Validation of Debthttp://www.protectingconsumerrights.com/blog/2013/4/5/the-right-to-request-validation-of-debt/There is often a great deal of confusion about Justice _scalewhat rights you have as a consumer when it comes to requesting validation from a debt collector.  The Fair Debt Collection Practices Act ("FDCPA") explicitly provides consumers with this right and defines in the statute the duties collectors have prior to continuing their collection efforts.   

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

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Fri, 05 Apr 2013 11:31:48 GMThttp://www.protectingconsumerrights.com/blog/2013/4/5/the-right-to-request-validation-of-debt/
Federal Student Loan Collectionshttp://www.protectingconsumerrights.com/blog/2013/4/8/federal-student-loan-collections/Post graduation, paying off student loans provides Piggy _banka great deal of stress to consumers.  In our suffering economy jobs are harder to find than ever before no matter what type of degree you carry, and repayment of loans proves more difficult than ever imagined.  In fact, last year alone the amount of outstanding student loans surpassed the amount of credit card debt in our county. 

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

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Mon, 08 Apr 2013 14:25:32 GMThttp://www.protectingconsumerrights.com/blog/2013/4/8/federal-student-loan-collections/
The Consumer Financial Protection Bureauhttp://www.protectingconsumerrights.com/blog/2013/4/8/the-consumer-financial-protection-bureau/The Consumer Financial Protection Bureau ("CFPB")Past _due _img is an agency created by our federal government, responsible for protecting and regulating financial services relating to consumers.  The bureau was created in response to the financial crisis our country underwent during the recession of this century.  The bureau, which became effective on July 21, 2011, is responsible for policing banks, credit unions, payday loan lenders, mortgage banks, collection agencies and other financial institutions.  The CFPB focuses the majority of its efforts on monitoring the credit card industry, student loans and the mortgage industry. 

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.

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Mon, 08 Apr 2013 14:45:47 GMThttp://www.protectingconsumerrights.com/blog/2013/4/8/the-consumer-financial-protection-bureau/
The Consumer Financial Protection Bureau and The Larger Participant Rulehttp://www.protectingconsumerrights.com/blog/2013/4/10/the-consumer-financial-protection-bureau-and-the-larger-participant-rule/In a post earlier this week, I blogged about the inceptionJustice _scale and purpose of the Consumer Financial Protection Bureau ("CFPB").  When creating this agency the federal government required the submission of an annual report on the Fair Debt Collection Practices Act ("FDCPA") explaining the agency's progress on supervising the entire collection industry.  In an effort to better achieve its consumer minded goals, the agency adopted the "large participant" rule to protect consumers from the strong arm of collectors.  Under this newly adopted rule, any third-party debt collector, debt buyer and/or collection attorney with more than $10 million in annual receipts from consumer debt collection activities will be subject to the supervision of the CFPB.   

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.

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Wed, 10 Apr 2013 14:36:14 GMThttp://www.protectingconsumerrights.com/blog/2013/4/10/the-consumer-financial-protection-bureau-and-the-larger-participant-rule/
Consumer Financial Protection Bureau Holds Mortgage Insurers Liable for $15.4 Millionhttp://www.protectingconsumerrights.com/blog/2013/4/15/consumer-financial-protection-bureau-holds-mortgage-insurers-liable-for-$154-million/As I finish up this week's blogs focusing on the efforts Justice _scaleof the Consumer Financial protection Bureau ("CFPB") I want to discuss a situation relating to the mortgage industry that the Bureau was faced with and how it enforced its policy.  Earlier this month the CFPB announced its final decision in its effort to cease mortgage lenders from receiving improper kickbacks from insurers in exchange for their business.  The CFPB filed complaints against four separate mortgage insurance companies in an effort to cease this conduct which was believed to be prevalent over the past ten years. 

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

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Mon, 15 Apr 2013 12:10:05 GMThttp://www.protectingconsumerrights.com/blog/2013/4/15/consumer-financial-protection-bureau-holds-mortgage-insurers-liable-for-$154-million/
Court Rules in Favor of Consumers in a Class Action Suit Against Portfolio Recover Associates, LLChttp://www.protectingconsumerrights.com/blog/2013/4/15/court-rules-in-favor-of-consumers-in-a-class-action-suit-against-portfolio-recover-associates,-llc/In a class action suit against Portfolio Recovery Associates, Piggy _banka consumer rights firms wins a $350,000 judgment against the collection agency for violations of the Fair Debt Collection Practices Act ("FDCPA").  In the case of Zimmerman v Portfolio Recovery Associates, LLC, a plaintiff sued the debt collector for sending a collection letter inferring he was being sued for collection of the debt.  U.S. District Court, Southern District of New York, 09 Civ. 4602 (PGG).  Specifically, Portfolio Recovery sent 990 collection letters to alleged debtors implying legal action was being taken against them.  These collection letters were titled "Pre-Suit Package" and were signed by a "Catherine M. Hedgeman, Esq." and enclosed a draft summons and complaint.  In his complaint, the plaintiff alleged Portfolio Recovery violated the FDCPA by misrepresenting legal action was being taken against him in an effort to collect the debt when in fact such was not the case. 
 
In the Order issued by the Southern District of New York, the court stated that Portfolio Recovery Associates' use of the Pre-Suit Package was exactly the type of conduct the FDCPA seeks to prevent, justifying a large financial reward for the consumers.  The court further went on to say that because the collector had a net worth in excess of $50 million, the penalty must be large enough to deter the collection agency from further engaging in this type of conduct. 

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.

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Mon, 15 Apr 2013 12:30:33 GMThttp://www.protectingconsumerrights.com/blog/2013/4/15/court-rules-in-favor-of-consumers-in-a-class-action-suit-against-portfolio-recover-associates,-llc/
Spring Cleaning Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/4/19/spring-cleaning-your-credit-report/Justice _scaleApril 15th has come and gone.  Now is the time to focus on your credit report.

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


 

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Fri, 19 Apr 2013 11:15:02 GMThttp://www.protectingconsumerrights.com/blog/2013/4/19/spring-cleaning-your-credit-report/
Security Credit Services and Jacob Law Group Ordered to Pay $800,000 in a Settlement with the FTChttp://www.protectingconsumerrights.com/blog/2013/4/19/security-credit-services-and-jacob-law-group-ordered-to-pay-$800,000-in-a-settlement-with-the-ftc/In March of this year the Federal Trade Commission ("FTC") Past _due _imgfiled a formal complaint against collection agency, Security Credit Services, LLC ("SCS") and Jacob Law Group PLLC ("Jacob") alleging violations of the Fair Debt Collection Practices Act ("FDCPA") by charging consumers illegal fees for payments made by telephone and for threatening to file suit against consumers to get them to make payment on debts.  The complaint states that in conjunction with SCS, Jacob contacted debtors and pressured them into making payment over the phone, subjecting them to additional fees which would not be incurred when making payment by mail or online.  Furthermore, SCS and Jacob falsely threatened to sue consumers who did not agree to make the telephone payment and incur the additional charge. 

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

 

 

 

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Fri, 19 Apr 2013 12:37:21 GMThttp://www.protectingconsumerrights.com/blog/2013/4/19/security-credit-services-and-jacob-law-group-ordered-to-pay-$800,000-in-a-settlement-with-the-ftc/
Third Circuit Rules Debt Collection Letter Misleads Consumer on How to Request Validation of the Debthttp://www.protectingconsumerrights.com/blog/2013/4/19/third-circuit-rules-debt-collection-letter-misleads-consumer-on-how-to-request-validation-of-the-debt/In Caprio v. Healthcare Revenue Recovery Group LLC, Past _due _imgthe plaintiff filed a complaint against Healthcare Revenue Recovery Group, LLC ("HRRG") alleging violations under the Fair Debt Collection Practices Act ("FDCPA") D.C. Civil No. 2-11-cv-02877 (New Jersey).  On appeal from the New Jersey District Court, the Third Circuit held that a collection letter sent by HRRG, could have more than one interpretation using the "least sophisticated consumer" standard and therefore violated the FDCPA.

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.

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Fri, 19 Apr 2013 16:32:15 GMThttp://www.protectingconsumerrights.com/blog/2013/4/19/third-circuit-rules-debt-collection-letter-misleads-consumer-on-how-to-request-validation-of-the-debt/
New Collection Ordinance in Chicagohttp://www.protectingconsumerrights.com/blog/2013/3/1/new-collection-ordinance-in-chicago/While the Federal Government continues to crack down Justice _scaleon abusive debt collection tactics the City of Chicago takes its own stance on the industry.  The City recently passed a new ordinance governing collector conduct within its city limits, which takes effect July 1, 2013.   This new ordinance requires collectors attempting to collect consumer debts from Chicago residents to be licensed in the State of Illinois and to comply with all federal and state laws and regulations, including the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq., and the Illinois Collection Agency Act, 225 ILCS 425 et seq.

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.   

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Fri, 01 Mar 2013 14:35:15 GMThttp://www.protectingconsumerrights.com/blog/2013/3/1/new-collection-ordinance-in-chicago/
Speciality Credit Reporting Agencies Need to Comply with Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2012/12/5/speciality-credit-reporting-agencies-need-to-comply-with-fair-credit-reporting-act/When we hear the term credit reporting agency, we think of Piggy _bankTrans Union, Equifax and Experian, and the reporting of our payment histories.  The Fair Credit Reporting Act provides consumers a number of rights when it comes to dealing with a credit reporting agency.  We enjoy rights such as the right to obtain a copy of our credit report for free once every year, the right to a free credit report when we are denied a credit opportunity, the right to privacy in the report so that nobody can access it without a legally enumerated purpose, and the right to have inaccurate information investigated and corrected. 

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.

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Wed, 05 Dec 2012 14:49:06 GMThttp://www.protectingconsumerrights.com/blog/2012/12/5/speciality-credit-reporting-agencies-need-to-comply-with-fair-credit-reporting-act/
Credit Reporting Agencies You Never Heard Ofhttp://www.protectingconsumerrights.com/blog/2012/12/5/credit-reporting-agencies-you-never-heard-of/Piggy _bankWhen it comes to credit reporting agencies, we have all heard of the main three, Trans Union, Equifax and Experian.  A majority of the credit transactions that take place in this country utilize one of these three for their credit information on the consumer applying for credit.  But there are so many more.   As we have written in our blog, any other kind of background check that provides information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. 

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.

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Wed, 05 Dec 2012 16:32:40 GMThttp://www.protectingconsumerrights.com/blog/2012/12/5/credit-reporting-agencies-you-never-heard-of/
TCPA - Receiving Calls on Your Cell From a "Robo Caller"http://www.protectingconsumerrights.com/blog/2012/12/7/tcpa-receiving-calls-on-your-cell-from-a-robo-caller/In this day and age, most everyone has a cell phone.  Justice _scaleIn fact, many people have replaced their home phones with a cell phone.  Most people who have a cell phone has received a call from a "Robo" dialer at some point or another.  It is quite typical for calls to be made by collectors or telemarketers utilizing an automated calling system. 

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.

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Fri, 07 Dec 2012 12:37:46 GMThttp://www.protectingconsumerrights.com/blog/2012/12/7/tcpa-receiving-calls-on-your-cell-from-a-robo-caller/
Collectors Leaves Messages - To Wrong Numberhttp://www.protectingconsumerrights.com/blog/2012/12/10/collectors-leaves-messages-to-wrong-number/Past _due _imgWe came across a question to one of the many consumer question boards that asked:  What kind of scam is going on with these calls where they mention a name then tell you to hang up if you are not this person? What do they do if you don't hang up but instead stay on the line for the whole message?

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.

 

 

 

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Mon, 10 Dec 2012 12:34:49 GMThttp://www.protectingconsumerrights.com/blog/2012/12/10/collectors-leaves-messages-to-wrong-number/
When Are Too Many Collection Calls Considered Harassmenthttp://www.protectingconsumerrights.com/blog/2012/12/19/when-are-too-many-collection-calls-considered-harassment/Many people contact us to complain that they are Past _due _imggetting a high volume of calls from a collector, and they believe it is harassment.  The Fair Debt Collection Practices Act states that a collector may not cause a telephone to ring repeatedly with the intent to harass, annoy or abuse the person at the called number. (15 U.S.C. 1692d(5)).  When on a campaign of calls, collectors will always defend their actions by claiming that there is no intent on harassing, but rather they are attempting to contact the debtor.  However, the calls multiply, and can come a few times or more daily.   So, when are the calls considered harassment?

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.

 

 

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Wed, 19 Dec 2012 10:04:10 GMThttp://www.protectingconsumerrights.com/blog/2012/12/19/when-are-too-many-collection-calls-considered-harassment/
Not All Collections are Debt Collectors Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2012/12/21/not-all-collections-are-debt-collectors-under-the-fdcpa/Most debt collection comes to us in the form of phone call Past _due _imgcampaigns, letter writing, credit reporting, and lawsuits.  The collectors are obviously the agencies and lawyers that pursue the debts by these means.  However, many people find themselves subject to other collection abuses  - such has aggressive and nasty process servers and repo men.  To most, this is some form of collection.  After all, the process server is delivering the message from the creditor that they are taking the matter to court.  The repo man is taking away a car or other chattel because a debt is not being paid.  Though the stories that come from the deplorable conduct of some of these companies, we do not find any protection from them under the Fair Debt Collection Practices Act.

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.


 

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Fri, 21 Dec 2012 10:35:18 GMThttp://www.protectingconsumerrights.com/blog/2012/12/21/not-all-collections-are-debt-collectors-under-the-fdcpa/
Court Finds That Condo Association Management Company is Not Debt Collector (15 U.S.C. §1692a(6)(F)(i) explained)http://www.protectingconsumerrights.com/blog/2012/12/21/court-finds-that-condo-association-management-company-is-not-debt-collector-(15-usc-§1692a(6)(f)(i)-explained)/We recently wrote a blog on how certain companies do not fall Justice _scalewithin the definition of a "debt collector" under the Fair Debt Collection Practices Act.  Click here. If a person or business is not a debt collector under the FDCPA, then regardless of how despicable the conduct, they are not liable to the consumer under that law.   Another such way where a company that is apparently collecting a debt owed to another, but is not a debt collector, can be found in 15 USC §1692a(6)(F)(i).  This rarely reported section states that a the Act does not apply to a person or company  "collecting or attempting to collect any debt owed ... another to the extent such activity is incidental to a bona fide fiduciary obligation."  

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.

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Fri, 21 Dec 2012 13:05:12 GMThttp://www.protectingconsumerrights.com/blog/2012/12/21/court-finds-that-condo-association-management-company-is-not-debt-collector-(15-usc-§1692a(6)(f)(i)-explained)/
Discharging Student Loans in Bankruptcyhttp://www.protectingconsumerrights.com/blog/2012/12/21/discharging-student-loans-in-bankruptcy/It has been said that it is impossible to discharge a Piggy _bankstudent loan in bankruptcy.  While indeed it is a very difficult debt to discharge, it is not impossible.  In fact, one collector had been found liable under the Fair Debt Collection Practices Act for representing to a consumer, while collecting a student loan, that the loan was not eligible for  discharged in bankruptcy.  See Easterling v. Collecto, Inc., 692 F.3d 229 (2d Cir. 2012).

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. 

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Fri, 21 Dec 2012 16:37:35 GMThttp://www.protectingconsumerrights.com/blog/2012/12/21/discharging-student-loans-in-bankruptcy/
Debt Collectors Threat to Report You as Refusing to Payhttp://www.protectingconsumerrights.com/blog/2012/11/2/debt-collectors-threat-to-report-you-as-refusing-to-pay/A story we have heard a few times recently regarding Past _due _imgcollector threats deals with them advising the consumer that they are going to mark down that the consumer is refusing to pay the debt.  The story usually starts with the collector calling and attempting to procure payment of the entire debt.  Most consumers in the current economic status of this country are unable to pay off an entire account at once - after all, the account would not have been in collections in the first place. 

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.


 

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Fri, 02 Nov 2012 12:12:41 GMThttp://www.protectingconsumerrights.com/blog/2012/11/2/debt-collectors-threat-to-report-you-as-refusing-to-pay/
Debt Collectors Charge Attorneys Fees - When is it legal?http://www.protectingconsumerrights.com/blog/2012/11/5/debt-collectors-charge-attorneys-fees-when-is-it-legal/Many consumers are facing lawsuits from debt collectors.  Justice _scaleThe collection courts are filled with consumers being sued  by creditors and companies that have bought the debt.  Many times, these lawsuits ask for attorney fees to be paid as part of the lawsuit.  This leads consumers to ask us:  Can we be held responsible for the attorney fees of the collector on top of the debt?

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.

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Mon, 05 Nov 2012 16:26:58 GMThttp://www.protectingconsumerrights.com/blog/2012/11/5/debt-collectors-charge-attorneys-fees-when-is-it-legal/
Debt Collectors Must Disclose Identityhttp://www.protectingconsumerrights.com/blog/2012/11/9/debt-collectors-must-disclose-identity/A consumer receives a call on their phone,Justice _scale and from the caller ID they cannot recognize the number.  They answer, and the caller states that they are looking for the consumer - that is, they give the name (let's say John Doe).  John Doe says that this is him.  The caller goes on to say they want to confirm that he is the right John Doe and demands that Mr. Doe provide his social security number and date of birth.  Being even the slightest bit prudent, Mr. Doe says he will not disclose any such information to a stranger on the phone and asks who is calling.  The caller says  that he or she cannot divulge that information until they get confirmation that this is the person they are looking for.  "Well, you found me," says Mr. Doe, "but I am not about to give you my social security number and date of birth because I don't know who you are.  So who are you?"  And the caller replies that unless they can get full confirmation, they will not be divulging anything, and the caller hangs up.  

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.

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Fri, 09 Nov 2012 11:26:27 GMThttp://www.protectingconsumerrights.com/blog/2012/11/9/debt-collectors-must-disclose-identity/
Debt Collectors Calling Your Referenceshttp://www.protectingconsumerrights.com/blog/2012/11/14/debt-collectors-calling-your-references/Does a debt collector that calls a third party in order to seekPast _due _img location information of the consumer violate the Fair Debt Collection Practices Act when it reveals to the person called that they were listed as a reference? 

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.

 

 

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Wed, 14 Nov 2012 15:02:13 GMThttp://www.protectingconsumerrights.com/blog/2012/11/14/debt-collectors-calling-your-references/
5 Rights You Have Under The Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2012/11/16/5-rights-you-have-under-the-fair-credit-reporting-act/The Fair Credit Reporting Act was enacted to protect consumers Justice _scalefrom having inaccurate information spread about them on a credit report.  However, the FCRA provides many other rights to consumers.  Here are some:

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.
 
 


 

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Fri, 16 Nov 2012 10:52:16 GMThttp://www.protectingconsumerrights.com/blog/2012/11/16/5-rights-you-have-under-the-fair-credit-reporting-act/
Banks Confused On When They Must Investigate Under FCRAhttp://www.protectingconsumerrights.com/blog/2012/11/30/banks-confused-on-when-they-must-investigate-under-fcra/In September of this year, the 6th Circuit Appellate Court clarified Justice _scalethe confusion that apparently existed within USAA Federal Savings Bank (Boggio v. USAA Federal Savings Bank, Docket No. 11-4040).  The bank was under the impression that when it received a dispute from a credit bureau regarding a consumers claims of inaccuracy on their credit report,  it need not do more than a cursory review of the account to satisfy its obligations under the Fair Credit Reporting Act if they were no provided documents that comply with their own internal procedures.  

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.

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Fri, 30 Nov 2012 10:22:48 GMThttp://www.protectingconsumerrights.com/blog/2012/11/30/banks-confused-on-when-they-must-investigate-under-fcra/
Brad Pitt to Develop TV Series About Debt Collectionhttp://www.protectingconsumerrights.com/blog/2012/11/30/brad-pitt-to-develop-tv-series-about-debt-collection/It has been reported that Brad Pitt's production Company, Plan B Entertainment,Past _due _img will be producing a TV series for HBO called "Paper" about the life of a debt collector.  The show is to be about a former gangster in Buffalo , NY, that tries to clean up his life by starting to work at a debt collection agency - only to learn that the life in that debt collection agency is not too much different from his life as a gangster. 

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.

 


 

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Fri, 30 Nov 2012 15:25:08 GMThttp://www.protectingconsumerrights.com/blog/2012/11/30/brad-pitt-to-develop-tv-series-about-debt-collection/
When Can Debt Collectors Access Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2012/10/24/when-can-debt-collectors-access-your-credit-report/We hear many complaints from consumers concerned that a debt collector Justice _scalehas gained access to their credit report.  Given that the consumer originally dealt with a creditor, and did not ever deal with the collector directly, they wonder why it is that the collector can dig into your personal, private credit report. 

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.

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Wed, 24 Oct 2012 13:55:02 GMThttp://www.protectingconsumerrights.com/blog/2012/10/24/when-can-debt-collectors-access-your-credit-report/
Most Common Fair Debt Collections Act Violationshttp://www.protectingconsumerrights.com/blog/2012/10/22/most-common-fair-debt-collections-act-violations/The Fair Debt Collection Practices Act is loaded with instructionsPast _due _img on how collectors must act, and the dos and don'ts of how to collect a debt.  While many collection agencies do take steps to assure that they do not violate the law,  a very large amount willingly violate the law.  There are also parts of the FDCPA that collectors seem to either not understand or just ignore the proper application.   Here are some of the most popular violations of the FDCPA that we see in our clients' claims:

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.

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Mon, 22 Oct 2012 13:36:50 GMThttp://www.protectingconsumerrights.com/blog/2012/10/22/most-common-fair-debt-collections-act-violations/
How To Buy A Used Car And What to Watch Out Forhttp://www.protectingconsumerrights.com/blog/2012/10/19/how-to-buy-a-used-car-and-what-to-watch-out-for/For many consumers, buying a new car is no longer rPiggy _bankealistic as new cars have gotten more and more expensive. Purchasing a used car allows a consumer to buy the make and model of car they want that they may not have been able to have afford as a new car. Used cars can be purchased from a small used car lot, from a manufacturer authorized dealership, or from an individual owner of the vehicle.

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.

 

 

 

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Fri, 19 Oct 2012 14:34:17 GMThttp://www.protectingconsumerrights.com/blog/2012/10/19/how-to-buy-a-used-car-and-what-to-watch-out-for/
Statute of Limitations as a Defense to Collectionshttp://www.protectingconsumerrights.com/blog/2012/10/8/statute-of-limitations-as-a-defense-to-collections/Often people contact us complaining that Past _due _imgthey are be garnished, or otherwise collected upon, from a debt that is very old.  They ask why a collector can still come after them, and ask whether the "statute of limitations" helps them at all.  Its seems that these buzz words are giving consumers confidence that they are safe from old debts because the collector or creditor has left them alone for quite some time. 

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.

 

 


 

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Mon, 08 Oct 2012 12:10:39 GMThttp://www.protectingconsumerrights.com/blog/2012/10/8/statute-of-limitations-as-a-defense-to-collections/
Seeking Validation When a Lawsuit is Filedhttp://www.protectingconsumerrights.com/blog/2012/10/1/seeking-validation-when-a-lawsuit-is-filed/It often happens that a person is served court documentsJustice _scale informing them that they have to go to court because a creditor claims that they are owed money.  The common initial reaction is for the consumer to ask what this is about and want to talk to the creditor or the lawyers that filed immediately.  Sometimes the consumer will make a demand over the phone or send a letter to the creditor or lawyer demanding some verification as to where the debt is from.  Not surprisingly, those requests are ignored.  The consumer is left to wonder what to do to find out about this debt, and then, not reacting properly to the lawsuit, has a judgment entered against them.  So one wonders, what is a person to do in this situation when they want to get validation of the debt?

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.

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Mon, 01 Oct 2012 15:20:40 GMThttp://www.protectingconsumerrights.com/blog/2012/10/1/seeking-validation-when-a-lawsuit-is-filed/
Re-Aging of Debts on a Credit Reporthttp://www.protectingconsumerrights.com/blog/2012/9/25/re-aging-of-debts-on-a-credit-report/Some debt collectors report the debts they areJustice _scale collecting to the credit bureaus.  When they do, that can cause some aggravation to the consumer who is seeking to get out of debt and clear up their credit.  One concern many consumers raise is the belief that the reporting debt collector is re-aging the account.  Re-aging an account can be troubling for the consumer.  However, if properly found, it can spell bigger trouble for the collector.

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.

 

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Tue, 25 Sep 2012 12:51:14 GMThttp://www.protectingconsumerrights.com/blog/2012/9/25/re-aging-of-debts-on-a-credit-report/
Class Action Settlement Reached Under FDCPAhttp://www.protectingconsumerrights.com/blog/2012/9/14/class-action-settlement-reached-under-fdcpa/A group of collection agencies and debt buyers Justice _scalerecently settled a class action lawsuit that was filed against them for $575,000.  The defendants are all related companies that were sued on behalf of 3,000 consumers in Maryland. 
 
In the case of Winemiller, et al. v. Worldwide Asset Purchasing, et al. it was alleged that the companies were not properly licensed to collect in Maryland and that they "consistently misstated the total amount of the principal, wrongly including interest and fees in the principal calculation," in violation of the Fair Debt Collection Practices Act (FDCPA). Further, the case alleged that some of the debts pursued in court were beyond the statute of limitations. 

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. 

 

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Fri, 14 Sep 2012 14:08:45 GMThttp://www.protectingconsumerrights.com/blog/2012/9/14/class-action-settlement-reached-under-fdcpa/
Another Horrifying Background Check Storyhttp://www.protectingconsumerrights.com/blog/2012/9/12/another-horrifying-background-check-story/Past _due _imgA man who has no criminal background at all, that has experience working in healthcare facilities, went in for a job opportunity.  As his experience and interview reflect he is fit for the job, he is hired pending his background check.  Just two weeks into the job, his background check came in.  Unfortunately, this person had a somewhat common name.  The background check came back with a horrifying string of crimes from drug possession, to solicitation of prostitution, to assault charges.  This man did none of these crimes, but since his background check came back with these items, he was promptly terminated from his new job.

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.

 

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Wed, 12 Sep 2012 15:17:59 GMThttp://www.protectingconsumerrights.com/blog/2012/9/12/another-horrifying-background-check-story/
FDCPA Cases Revived by Appellate Courthttp://www.protectingconsumerrights.com/blog/2012/8/29/fdcpa-cases-revived-by-appellate-court/The 11th Circuit Appellate Court revived threeJustice _scale Fair Debt Collection Practices Act cases in one decision the other day.   In Zinni v. ER Solutions, 2012 WL 3641911 three cases were combined for an appeal where the trial court dismissed each of the three cases for the same reason.  In each case, the debt collector made an offer of $1,001 plus reasonable attorneys fees to either be agreed upon by the parties or decided by the court.  The Plaintiffs in each case did not accept the offers. 

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.

 

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Wed, 29 Aug 2012 11:40:14 GMThttp://www.protectingconsumerrights.com/blog/2012/8/29/fdcpa-cases-revived-by-appellate-court/
Threats from Collectors - What Countshttp://www.protectingconsumerrights.com/blog/2012/8/29/threats-from-collectors-what-counts/Are you receiving threatening calls from collectors?Justice _scale

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!

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Wed, 29 Aug 2012 11:27:38 GMThttp://www.protectingconsumerrights.com/blog/2012/8/29/threats-from-collectors-what-counts/
Debt Collectors Call - But Then Hang uphttp://www.protectingconsumerrights.com/blog/2012/8/24/debt-collectors-call-but-then-hang-up/Debt Collectors like to call their debtors and leave messages Past _due _imgon their home phones, cell phones and work phones.  Often, these calls get the collectors into hot water.  Sometimes that message does not properly disclose that the call is an attempt to collect a debt (as required by 15 U.S.C. §1692e(11)) and sometimes the call does disclose the debt, but the message is one that is heard by third parties (in violation of 15 U.S.C. §1692b(2)). 

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.

 

 

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Fri, 24 Aug 2012 10:17:09 GMThttp://www.protectingconsumerrights.com/blog/2012/8/24/debt-collectors-call-but-then-hang-up/
Background Checker Violates FCRAhttp://www.protectingconsumerrights.com/blog/2012/8/20/background-checker-violates-fcra/Are you looking for a job and getting nowhere?  Piggy _bankIs 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.

 

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Mon, 20 Aug 2012 13:20:27 GMThttp://www.protectingconsumerrights.com/blog/2012/8/20/background-checker-violates-fcra/
Car Buying Guide - New vs. Usedhttp://www.protectingconsumerrights.com/blog/2012/8/1/car-buying-guide-new-vs-used/This time of year, the car sales pitches hit high tide.  Piggy _bankLabor Day sales and "summer close out sales " start to pop up at every dealership.  They are trying to sell off last years models before the new ones take over popularity, and they are  trying to target those who need cars for the new school year- such as college kids or new drivers.  Regardless of what you are buying or what you need, here are some tips to consider. 

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. 
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Wed, 01 Aug 2012 13:06:50 GMThttp://www.protectingconsumerrights.com/blog/2012/8/1/car-buying-guide-new-vs-used/
First Alliance Check Systems - A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/7/20/first-alliance-check-systems-a-debt-collector/First Alliance Check Systems was hired to collect Past _due _imga debt of a certain consumer who ultimately became our client.   In order to attempt to collect the debt, they called her at her place of employment.  The consumer advised the collector at First Alliance Check Systems that she could not take their calls while she was at work.  Still, the collectors at FACS continued to call her at work.  However, that was not all First Alliance Check Systems did to violate the Fair Debt Collection Practices Act.  FACS went on a campaign of harassment which included calling the consumer between 4 and 5 times a day, calling third parties, attempt to collect more than what was owed on the debt, and threatening her by telling her she is being charged with check fraud. 

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.

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Fri, 20 Jul 2012 12:37:23 GMThttp://www.protectingconsumerrights.com/blog/2012/7/20/first-alliance-check-systems-a-debt-collector/
5 Myths About Debt Collectionshttp://www.protectingconsumerrights.com/blog/2012/7/18/5-myths-about-debt-collections/In our practice of representing debtors in their claims ofJustice _scale improper debt collection practices under the Fair Debt Collection Practices Act by collection agencies and attorneys, we have come across quite a few misconceptions about how the law works.   Here are 5 common ones and the truths behind them:

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.
 

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Wed, 18 Jul 2012 12:10:31 GMThttp://www.protectingconsumerrights.com/blog/2012/7/18/5-myths-about-debt-collections/
Judgment Against Mary Jane Elliot, P.C.http://www.protectingconsumerrights.com/blog/2012/7/10/judgment-against-mary-jane-elliot,-pc/We had a client come to us that had tried to do the right thing Justice _scaleand work out an agreement to pay off her debt when she was sued by debt collector Mary Jane Elliot's office.   In court, this consumer appeared and worked out a deal to pay off the debt.  The deal was accepted and she began her payments.  She made all payments on time and complied with the deal she made.  For Mary Jane Elliot's office, that just wasn't good enough.  Instead Mary Jane Elliot's office began a campaign of collections in an attempt to speed up the payments.  The collectors would call this consumer and tell her she defaulted on the agreement and now no longer has a deal.  The collectors told her that she now has to pay off the entire balance in full.  If that wasn't enough, Mary Jane Elliot's office failed to account for any of the payments that the consumer made despite the proof that there were receipts for the payments.
 
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 March of 2012.  We sent out a process server with the summons and the complaint to the owner and registered agent of the corporation, and we were able to obtain service of the complaint. 
 
It appears that Mary Jane Elliot's office had no defense for their actions.  This debt collector did not attempt to participate in any discovery on the case or even fight it.  Perhaps it was the realization that they had been caught flagrantly violating the Fair Debt Collection Practices Act, as Mary Jane Elliot's office surrendered and acknowledged that it violated the FDCPA.   On July 2, 2012, Mary Jane Elliot's office, 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 Mary Jane Elliot's office:
Mary Jane M. Elliott, P.C.                                         
c/o Mary Jane M. Elliott                                       
24300 Karim Blvd
Novi, MI 48375 
 
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.

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Tue, 10 Jul 2012 13:21:09 GMThttp://www.protectingconsumerrights.com/blog/2012/7/10/judgment-against-mary-jane-elliot,-pc/
5 Myths About Credit Reportinghttp://www.protectingconsumerrights.com/blog/2012/7/10/5-myths-about-credit-reporting/In our practice of assisting consumers with credit report errors, Justice _scalewe come across many misconceptions that consumers have about their credit reports, and the rights they have.   Here are 5 commons ones, and the truths behind them:

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.
 

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Tue, 10 Jul 2012 12:39:52 GMThttp://www.protectingconsumerrights.com/blog/2012/7/10/5-myths-about-credit-reporting/
Garnishment of Federal Student Loanshttp://www.protectingconsumerrights.com/blog/2012/7/6/garnishment-of-federal-student-loans/Justice _scaleFederally funded student loans are unlike any other.  With every other debt, the creditor must file a lawsuit against you and win it before they can make any attempt to garnish your wages or attach to any of your assets.  However, with federally funded student loans, the government has the right to start a garnishment without a lawsuit.  However, this does not mean you have no rights when it comes to the collection of these loans.
 
Debt collectors of student loans will use this sort of information to their benefit to frighten consumers into paying them money faster.  Often, the collectors will say that they can start the process without any legal action whatsoever. Typically, they will make it seem like you will wake up one morning to find your wages garnished with no written warning .  That's not only incorrect, but it may be a violation of the Fair Debt Collection Practices Act. As with anything else, there's a process that must be followed before they can take your money, and if the process is not properly followed, there can be no garnishment.

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

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Fri, 06 Jul 2012 16:38:14 GMThttp://www.protectingconsumerrights.com/blog/2012/7/6/garnishment-of-federal-student-loans/
Messages from Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/6/27/messages-from-debt-collectors/Justice _scaleA very common message is being left by many debt collectors around the country.   Just about anyone who has a collection company pursuing them has heard it.    The message starts with the caller not identifying who they are, but seeking their debtor, "This message is for Jane Doe.  If this is not Jane Doe, hang up the phone."   This gripping opening line hardly gets the reaction the caller desires if the person who first hears this is not Jane Doe.  I doubt that many people hear that the call is not for them and just hang up.  More importantly, if this is coming into a voicemail account or an answering machine, what exactly does hanging up do?  The message is still there and has to be dealt with.  So curiosity has most of us listening on. 

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.

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Wed, 27 Jun 2012 14:09:26 GMThttp://www.protectingconsumerrights.com/blog/2012/6/27/messages-from-debt-collectors/
Judgment Against Creditors Collection Servicehttp://www.protectingconsumerrights.com/blog/2012/6/25/judgment-against-creditors-collection-service/One of our clients came to us with a harrowing story of how Creditors Collection Service engaged in a campaign of harassment and abuse to attempt to collect a debt it believed was owed.   The collector at Creditors Collection Service told the consumer that she was an attorney - she was not.  Moreover, the collector threatened to sue the consumer's spouse (who had no relation to the debt) and garnish the family's wages.  If that wasn't enough, they misrepresented to the consumer how much they really owed and collected more than what was really owed. 

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.Past _due _img
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.

 

 

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Mon, 25 Jun 2012 16:24:03 GMThttp://www.protectingconsumerrights.com/blog/2012/6/25/judgment-against-creditors-collection-service/
Who Can Gain Access to Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2012/6/20/who-can-gain-access-to-your-credit-report/Your credit report is private.  It contains very personal Justice _scaleinformation about your financial status and reputation among your 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 your credit report essentially fall into 3 groups, potential and current creditors, potential and current employers, and potential and current insurers.

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. 

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Wed, 20 Jun 2012 13:12:31 GMThttp://www.protectingconsumerrights.com/blog/2012/6/20/who-can-gain-access-to-your-credit-report/
Northwest Collectors Inc. - Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/6/18/northwest-collectors-inc-debt-collector/Northwest Collectors Inc., also known as NCI,  has been in business Past _due _imgsince 1970.  They are not accredited with the Better Business Bureau.  Their website says that they were founded because they felt a need for "a competent and responsible organization to accommodate the collection needs of the credit community in an efficient and ethical manner ."

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.

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Mon, 18 Jun 2012 14:36:18 GMThttp://www.protectingconsumerrights.com/blog/2012/6/18/northwest-collectors-inc-debt-collector/
Porfolio Recovery Associates - A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/6/15/porfolio-recovery-associates-a-debt-collector/One of the nations largest debt collection agencies, Justice _scalePortfolio Recovery Associates has had numerous complaints against it for its debt collection practices.  There have been reports of ignoring cease and desist letters, misrepresenting amounts of the debt, misrepresenting information to credit bureaus, and harassment and abuse.   Portfolio Recovery Associates does not just collect debts.  They buy old debts from creditors and manages debts of other creditors.   Portfolio Recovery Associates began in 1996 and became a publicly traded  company in 2002.  The company employs over 3,000 people in 10 different states in the U.S. and in the United Kingdom.    Portfolio Recovery Associates boasts on their website to having over $64 billion face value of purchased consumer debt

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.


 

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Fri, 15 Jun 2012 12:14:10 GMThttp://www.protectingconsumerrights.com/blog/2012/6/15/porfolio-recovery-associates-a-debt-collector/
National Enterprise Systems (NES) - Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/4/13/national-enterprise-systems-(nes)-debt-collector/Consumers have filed complaints against National Enterprise Systems for almost every type of violaPast _due _imgtion under the Fair Debt Collection Practices Act.  From unauthorized calls to work to unauthorized disclosures,  National Enterprise Systems have collected millions of dollars through these tactics.  National Enterprise Systems (known as NES) is located in Solon, Ohio, NES boasts being licenses to practice in all 50 states, plus the District of Columbia, Guam, Puerto Rico and the Virgin Islands.  NES was established in 1987 and has rapidly grown to service more than 150 educational institutions as part of its collection portfolio.  Many consumers have complained about multiple calls and threats being made that require immediate action. 

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.

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Fri, 13 Apr 2012 13:37:29 GMThttp://www.protectingconsumerrights.com/blog/2012/4/13/national-enterprise-systems-(nes)-debt-collector/
Employment Background Checks Causing Job Losshttp://www.protectingconsumerrights.com/blog/2012/4/13/employment-background-checks-causing-job-loss/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.Justice _scale

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.

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Fri, 13 Apr 2012 13:52:10 GMThttp://www.protectingconsumerrights.com/blog/2012/4/13/employment-background-checks-causing-job-loss/
Fair Credit Reporting Act - Not Just About Credit Bureaushttp://www.protectingconsumerrights.com/blog/2012/3/9/fair-credit-reporting-act-not-just-about-credit-bureaus/When it comes to reviewing your credit report, we are all aware of the big three credit bureaus, Trans Union, Experian and Equifax. The Fair Credit Reporting Act charges these companies, and any companies that furnish information to them, with certain responsibilities to maintain maximum accuracy in reporting. But are those three the only credit reporting agencies that have responsibilities under the FCRA? Not at all.

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.

 

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Fri, 09 Mar 2012 12:00:58 GMThttp://www.protectingconsumerrights.com/blog/2012/3/9/fair-credit-reporting-act-not-just-about-credit-bureaus/
GC Services Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/3/9/gc-services-debt-collectors/GC Services Limited Partnership is a  debt collection company Piggy _bank that opened in 1957.   They are one of the largest, private debt collection companies in the country.  They have over 9,000 employees and 30 call centers.  Not only are they large in size, but they also have a substantial number of complaints against them both on the web and with the BBB.  Consumers have filed 350 complaints filed against them with the Better Business Bureau, including 92 in last twelve months.    This fifty five year old company uses debt collection tactics that clearly violate the Fair Debt Collection Practices Act.

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.

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Fri, 09 Mar 2012 11:37:09 GMThttp://www.protectingconsumerrights.com/blog/2012/3/9/gc-services-debt-collectors/
About Encore Receivable Management - Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/2/24/about-encore-receivable-management-debt-collectors/Using multiple forms of harassment to get the job done, Encore Receivable Past _due _img Management has developed a reputation for heavy handed collection tactics.  Complaints have been posted on internet chat sites complaining of excessive calls throughout the day, failing to identify themselves during collection calls.    Encore Receivable Management, Inc. has been in the collection business for over 30 years.   Encore is a wholly owned subsidiary of Convergys Corporation which is a member of the S&P 500.  Encore employs approximately 2,500 collectors and has 86 different customer contact centers throughout the United States, Canada, Latin America, and Europe. 

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.


 

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Fri, 24 Feb 2012 15:03:09 GMThttp://www.protectingconsumerrights.com/blog/2012/2/24/about-encore-receivable-management-debt-collectors/
About PN Financial Inc. - Debt Collectors?http://www.protectingconsumerrights.com/blog/2012/2/17/about-pn-financial-inc-debt-collectors/PN Financial is a debt collection company based out of Skokie, Illinois with an office in Lincolnwood.  They are one of most egregious violators of the Fair Debt Collection Practices Act in the state of Illinois.  In January 2012, the Attorney General of Illinois has filed suit against PN Financial Inc. in Cook County Circuit Court.  The complaints against them are numerous.  They contact family and friends to discuss the consumer's debt.  Additionally, they send out letters that make it look as if a lawsuit has been filed including fake case numbers. 

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.

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Fri, 17 Feb 2012 14:05:20 GMThttp://www.protectingconsumerrights.com/blog/2012/2/17/about-pn-financial-inc-debt-collectors/
Background Checks for Employment and The Fair Credit Reporting Acthttp://www.protectingconsumerrights.com/blog/2012/2/15/background-checks-for-employment-and-the-fair-credit-reporting-act/A background check for employment that results in a termination or failure to gain employment can lead to violations of the Fair Credit Reporting Act.  If part of the interview process requires a background check, or if your continued employment with a company depends upon a background check, you have rights under the Fair Credit Reporting Act.  Most background reports used by businesses are considered consumer reports or credit reports under the Fair Credit Reporting Act. 

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.

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Wed, 15 Feb 2012 12:17:08 GMThttp://www.protectingconsumerrights.com/blog/2012/2/15/background-checks-for-employment-and-the-fair-credit-reporting-act/
Tough on Debt Collectors - Asset Acceptancehttp://www.protectingconsumerrights.com/blog/2012/2/3/tough-on-debt-collectors-asset-acceptance/Debt collectors use many different tactics to convince people to make a payment to them. Some of these tactics are actually legal, some cross over the line.  Many debt collectors are sneaky and get you to start paying on debts that are old and re-start a new statute of limitations period, giving the collectors more time to file a lawsuit against you.  One such company, Asset Acceptance, is being sued by the Federal Trade Commission to stop such tactics and violating Federal law.   Awaiting the approval of a judge, the Federal Trade Commission announced a $2.5 million settlement.  

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.

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Fri, 03 Feb 2012 15:57:58 GMThttp://www.protectingconsumerrights.com/blog/2012/2/3/tough-on-debt-collectors-asset-acceptance/
Late Payments - How They Effect My Credithttp://www.protectingconsumerrights.com/blog/2012/1/18/late-payments-how-they-effect-my-credit/Paying your bills late can have a serious impact on your credit report because your creditors and the credit bureaus report those late payments .  The more recent your delinquency, the more it will have a negative impact on your score.  Over time, the effect of the delinquency begins to diminish.  

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. 

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Wed, 18 Jan 2012 12:19:05 GMThttp://www.protectingconsumerrights.com/blog/2012/1/18/late-payments-how-they-effect-my-credit/
Communications with Employers after Marx v. General Revenue Corporationhttp://www.protectingconsumerrights.com/blog/2012/1/9/communications-with-employers-after-marx-v-general-revenue-corporation/Last month, the United States Appellate Court, 10th Circuit, handed down its opinion in Marx v. General Revenue Corporation, and it does not bode well for consumers.  In this case, the debt collector sent a fax to Marx's employer seeking information on her employment status.  Under the Fair Debt Collection Practices Act, Section 1692c(b) a debt collector cannot have any communication with any third party in connection with the collection of the debt.  At the heart of the case was whether the faxing of the request for employment information was a "communication" for purposes of the FDCPA

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!

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Mon, 09 Jan 2012 16:51:25 GMThttp://www.protectingconsumerrights.com/blog/2012/1/9/communications-with-employers-after-marx-v-general-revenue-corporation/
National Credit Adjusters - A Debt Collectorhttp://www.protectingconsumerrights.com/blog/2012/4/19/national-credit-adjusters-a-debt-collector/National Credit Adjusters is a privatelyheld company which specializes in collecting delinquent accounts receivables .  They are located in Hutchinson, Kansas.  They are known to collect on defaulted payday loans.  Their website claims theircompanyis founded on " wholesome family values and conducts business with respect, dignity, and fairness."

Is National Credit Adjusters Harassing you? Justice _scale
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. 

 

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Thu, 19 Apr 2012 14:36:03 GMThttp://www.protectingconsumerrights.com/blog/2012/4/19/national-credit-adjusters-a-debt-collector/
Consumer Fraud -Car Dealer Waives Arbitrationhttp://www.protectingconsumerrights.com/blog/2012/4/16/consumer-fraud-car-dealer-waives-arbitration/In a recent decision in which our firm represents the consumer, a court held that a car dealer's conduct in dragging its feet while the plaintiff sought to adjudicate her case amounted to a waiver of the right to arbitrJustice _scaleate the case.   This decision,which came out this week, is a great victory for consumers who unwittingly find themselves losing the right to take their case to court.  See case

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. 

 

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Mon, 16 Apr 2012 12:04:11 GMThttp://www.protectingconsumerrights.com/blog/2012/4/16/consumer-fraud-car-dealer-waives-arbitration/
Facebook and Debt Collectorshttp://www.protectingconsumerrights.com/blog/2012/4/20/facebook-and-debt-collectors/The Fair Debt Collection Practices Act or FDCPA's goal is Past _due _imgto protect the consumer against abusive debt collectors and their abusive tactics.  What are abusive tactics?  This includes:

 - 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.

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Fri, 20 Apr 2012 12:32:53 GMThttp://www.protectingconsumerrights.com/blog/2012/4/20/facebook-and-debt-collectors/
Collecting Debts From the Deceasedhttp://www.protectingconsumerrights.com/blog/2013/8/14/collecting-debts-from-the-deceased/The Fair Debt Collection Practices Act ("FDPCA") is the federal statute Piggy _bankthat governs how collection agencies can operate.  The law protects consumers from abusive collection practices by debt collectors.  A fast growing area of collection is collecting debts from deceased individuals….because when you die…your debt does not necessarily die with you. 

Collecting debts from the deceased often leads to contacting the person's family and friends for repayment, so it is important to understand the law and your rights to protect yourself and your loved ones estate.  It is important to understand when you are being contacted by a collector regarding a debt owed from someone who has passed away, it is unlikely that you are responsible for repayment of the debt.  When a friend or relative passes away, collectors often swoop in and use your fragile state to coerce you into payment on your loved one's behalf.  Collectors often use phrases like "it's the right thing to do" or "protect [your loved one's] good name".  But the reality is, most of the time you have no legal obligation to make payment

As a general rule, consumers are not responsible for making payment on another consumer's debt, with exception of course.  For example, if you were a co-signer on a credit card or an account, then you would be held liable for the debt after the other account holder was deceased.  Additionally, in several states, spouses are responsible for repayment of each other's medical debts even after death.   

As a starting point, under the FDCPA, a debt collector can contact a third party in an attempt to collect but is prohibited from disclosing any information regarding the debt or even that a debt exists.  The purpose of the call can be to obtain location information about the debtor.   A collector can also request information from a third party such as the name, address and phone number of the deceased person's spouse, executor, or any other individuals authorized to pay the deceased's debts.

The FDCPA allows a debt collector to speak with the executor of the deceased's estate, the personal in charge of distributing the deceased's assets.  The law permits a collector to discuss the debt openly with the executor because he has the authority to pay off the debt from the assets of the estate.
     
If you have lost a loved one and are being contacted by a debt collector and feel that his or her conduct may have violated the FDCPA, contact SmithMarco P.C. for a free case review

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Wed, 14 Aug 2013 10:56:29 GMThttp://www.protectingconsumerrights.com/blog/2013/8/14/collecting-debts-from-the-deceased/
Equifax Ordered to Pay $18 Million in Damageshttp://www.protectingconsumerrights.com/blog/2013/8/14/equifax-ordered-to-pay-$18-million-in-damages/Like many other consumers, Oregon resident Julie Miller ("Miller") had errors on her credit reportJustice _scaleLike many other consumers, Miller disputed the errors on her report on multiple occasions.  Like many other consumers, despite Miller's attempts to fix her report, Equifax would not listen to her request and verified the information as accurately reported.  Like many consumers, Miller took her frustrations to court and but unlike many consumers, Miller was awarded $18.6 Million in damages against Equifax in a tiresome battle this past week.

Specifically, in 2009 Miller requested a copy of her credit file from Equifax after she was denied credit for a bank loan.  Upon receipt, Miller reviewed her credit report and after careful scrutiny, she believed her credit report included inaccurate information that was devastating to her credit worthiness.  Miller's report contained derogatory accounts, collection accounts and a Social Security number and birth date that did not belong to her.  When Miller began her dispute process, Trans Union and Experian corrected the mistakes in response, however Equifax, in January of 2010, requested she provide additional identifying information prior to completing its investigation and Miller complied.  In mid-January, Equifax responded to Miller's dispute by verifying the account and personal identifying information as accurately reported.  On nine separate occasions between January of 2010 and September of 2011, Miller continued to reach out to Equifax requesting it fix the errors on her report, however her attempts were futile.  Each time, Equifax continued to send the same form letter requesting additional personal identifying information, on each occasion Miller provided the same requested information and in response, her credit report was verifying.  During her dispute process, Miller was denied credit from Key Bank for a loan she was co-signing with her son based on information contained in her Equifax report.    

In response to her efforts, Miller filed a lawsuit against Equifax and in 2013, was awarded an $18.6 million in punitive damages and $180,000 in actual damages for lost credit opportunities.  While Miller took the necessary steps to be aware of her credit report after being denied credit, studies show that over 20% of American consumers have never even reviewed their credit report and one in five consumers have errors on their report.  To avoid being categorized into this 20%, know your rights and access your credit report annually.  Under the law, as a consumer you are entitled you to one free credit report a year at AnnualCreditReport.com from each of the three major credit reporting agencies and you are entitled to a free copy of your report when you are denied credit.   
   
If you believe you have errors on your report and need assistance with your inaccuracies, contact SmithMarco P.C. for a completely free case review. 

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Wed, 14 Aug 2013 12:07:18 GMThttp://www.protectingconsumerrights.com/blog/2013/8/14/equifax-ordered-to-pay-$18-million-in-damages/
Collection Scam Tacticshttp://www.protectingconsumerrights.com/blog/2013/8/14/collection-scam-tactics/When you have collection agencies contacting you, it is often a scary and overwhelming experience, Justice _scaleforcing you to let your guard down and not think as clearly.  Collection agencies use your emotions and vulnerability to force you into making payment on debts that may either be illegitimate or inflated.  Collection agencies often provide you with little information about the debt and hound you until payment is made.   Far too often, consumers end up paying for debts they never actually owed.  Over the past several years with the rapidly failing economy, there has been an increased number of scams using false collection claims in order to receive payment from vulnerable consumers.  Considering how many payments the average consumer makes per month and how much debt the average consumer carries, it is no surprise that scamming a consumer into making payment actually works.

In most instances debt collection scams begin with a simple phone call.  The caller will sound intimidating and serious in an effort to direct the conversation.  Often times the collector will make up a name of the company he or she works for and will continue to contact you until payment is made or a request for verification of the debt is received.  Most of the time, because consumers are intimidated, they make payment over the phone instead of following their instincts and requesting validation prior to agreeing to pay on a debt they don't believe is theirs. 

In order to prevent being taken advantage of by these scam collection agencies, it is important to know your rights so that you are not coerced into making payment and can adequately represent yourself.  While the Fair Debt Collection Practices Act ("FDCPA") is there to protect you, after the damage is done, filing a lawsuit against these fictitious collection agencies is next to impossible---they cannot be located and the reality is they do not really exist.  The most important step to take is to always ask for additional information.  Good questions to ask the collector for are proof of the debt in writing, ask for the collector's name and address, ask to only be contacted in writing.  You can also request a telephone number for you to contact the collector directly.  Request written documentation from the original creditor regarding the debt, including any previous payments you may have made.  Never, never, never make a payment over the phone or set up automatic withdrawals from your account without first having written proof of the legitimacy of the debt. 

Read some of our previous articles dealing with scam collectors including Phony Debt Collectors and What Do I Do Now

Lastly, there is no harm in asking for help.  If you are not sure about your rights contact an attorney.  The FDCPA was enacted specifically to protect consumers like you from scam collectors.  If you are being contacted by a debt collector and are unsure of your rights or simply need additional information, contact SmithMarco P.C. for a free case review.

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Wed, 14 Aug 2013 11:28:03 GMThttp://www.protectingconsumerrights.com/blog/2013/8/14/collection-scam-tactics/
Credit Reports to Show Your Credit Card Payment Historyhttp://www.protectingconsumerrights.com/blog/2013/8/14/credit-reports-to-show-your-credit-card-payment-history/In a recent change to your credit report, the three major credit reporting agencies, Equifax, Experian and Trans Union, have amended their reporting to include information regarding your credit card payment history.  This change will affect more than 150 million credit card paying consumers.  In addition to reporting whether you make timely payments each month, the information reported will detail whether you accumulate interest and finance charges each month, giving current or potential creditors a better picture of whether you may be a credit risk.    

The bureaus desire to include what it considers to be valuable information will give creditors a clearer picture of your payment tendencies.  Previously, your credit report only showed your card balance, credit limit and whether you made timely payments…..even if it was only the minimum payment, allowing your debt to credit ratio to grow every month.  The bureaus plan to now include a two year payment history on their reports detailing the exact amounts you pay each month.  The data will show the type of credit card payer you are: a consumer who makes purchases and then pays off entire balances, or a consumer who carries balances and pays hefty interest and finance charges.  
  
Of the three major credit reporting agencies, Equifax will add the payment history sometime in August, Experian has been slowly reporting the detailed account information over the past year and Trans Union began including the information in January of 2013.  The credit bureaus feel that this information is necessary to their reporting to give credit card issuers a clearer picture of who they are offering and extending credit to.    

The negative effect of reporting this information on consumer reports is the likelihood of error.  Reporting detailed monthly payment history provides a greater opportunity for error and like the other information on your report, the information is also subject to the Fair Credit Reporting Act ("FCRA").  The bureaus have decided for now that the information won't affect your score.  In other words, making the minimum payment on your credit card won't change how the account is factored into your score any more than if you made a larger payment or even paid off the balance in full.  After a period of time however this may change as the purpose of a credit score is to determine what type of consumer you are and how likely it is that you will repay your debt.      

If you have any questions or concerns relating to your credit report, contact SmithMarco P.C. for a free case review.  

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Wed, 14 Aug 2013 13:03:54 GMThttp://www.protectingconsumerrights.com/blog/2013/8/14/credit-reports-to-show-your-credit-card-payment-history/
The Importance of Understanding Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/8/14/the-importance-of-understanding-your-credit-report/Your credit report is the foundation of your credit score.  Because we live in a financially driven Past _due _imgsociety understanding your report and the laws enacted to protect you if there are errors on your report are now more important than ever.  

Educating yourself on the consumer laws, known as the Fair Credit Reporting Act ("FCRA"), is essential.  If you have inaccuracies in your credit report, it your responsibility to identify the error and take the appropriate steps to correct it.  We cannot rely on the credit reporting agency or the creditor reporting the information despite that it is their legal obligation to investigate into your claims

Your credit report is a summary of your credit history.  It reports your accounts both open and closed, negative and positive.  It contains information about where you have lived and worked, whether you have a judgment against you from a lawsuit and whether you have filed for bankruptcy or have tax liens.  All of the information contained in your report will affect your ability to obtain a loan, open a bank account or credit card, get a job, be approved for a mortgage and even rent an apartment…making checking your report for errors and accuracy extremely important to your financial well-being.  

While it is important to review your report regularly, you must review it with a clear understanding of your rights under the FCRA so you can protect yourself from errors and inaccuracy.  The FCRA provides the consumer protection, should a report contain inaccurate information.  It holds both the credit reporting agency(ies) and the creditor(s) responsible for the errors after you put them on notice by disputing the inaccurate information

Under the FCRA you have a right to dispute the inaccurate information with the credit reporting agencies and they are obligated under the law to provide a response to your dispute within 30 to 45 days of receipt.  As a consumer attorney, I encourage you to dispute in writing and provide supporting documentation, if available,  to accompany your dispute.  I advise against on-line disputes.  While it provides a quicker response to your request for investigation, it is not as thorough, limits what information you can provide to the credit bureaus, and usually ends up in needing a second dispute.  While waiting for your dispute results or if the response is not the end result you were hoping for, the FCRA allows you to add a 100 word statement to your report explaining any accounts or information you disagree with.  The credit reporting agency will include your statement on all future reports and will even redistribute reports that were requested in the recent past including your consumer statement.    Moreover, if the information that remains on your credit report is inaccurate or misleading, and that information causes harm in the way of lost credit, insurance or employment opportunities, then you are entitled to recover money for those damages, along with attorney fees and costs. 

If you need assistance in reviewing your report or clearing up information that is inaccurate and negatively affecting your credit report, contact SmithMarco P.C. for a free case review.

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Wed, 14 Aug 2013 13:29:23 GMThttp://www.protectingconsumerrights.com/blog/2013/8/14/the-importance-of-understanding-your-credit-report/
Low Income Consumers at Risk of Being Denied a Bank Accounthttp://www.protectingconsumerrights.com/blog/2013/8/16/low-income-consumers-at-risk-of-being-denied-a-bank-account/In recent years, low income consumers are at great risk for being denied bank accounts,Justice _scale a necessity for building finances and aiding low income Americans at getting on their feet.  Innocent mistakes like a bounced check or an over-draft from an account have tarnished these consumers from obtaining bank accounts because of private databases used by most of America's banking industry.

In a post written last week, I explained how credit reporting agencies are not the only source that track and report on your financial history.  Private databases used by our banks are hindering the efforts of low income consumers to make their way out of a financial rut and are the contributing factor to approximately 10 million households in our country that cannot get a bank account.        

While credit reporting agencies report on your credit history for a period of 7 to 10 years, private databases only show your financial "lapses" in the banking industry.  Using these databases to determine a consumer's credit worthiness disproportionately affects low income consumers who more often live pay-check to pay-check making it likely to bounce checks and have overdrafts.  These databases were created over 20 years ago and in the recent past have hindered the efforts at aiding low income Americans to build their financial security by opening checking accounts. 

Low income consumers with decent credit reports are ineligible for opening checking accounts because of minor mistakes reported to these databases forcing them to turn to expensive check cashing facilities.  Without a checking account, low income consumers are more likely to make late payments and unable to save for their future, essentially forcing them to remain low income even with a decent job and a regular pay check.      

The Consumer Financial Protection Bureau is aware of this problem facing low income Americans and is currently in discussions about whether these databases should be forced to comply with the Fair Credit Reporting Act.  Currently, most consumers are not aware of the existence of these databases and have no idea what is reported about them.

If you are having problems obtaining a bank account or have issues with your credit report and would like assistance, contact SmithMarco P.C. for a free case review

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Fri, 16 Aug 2013 11:27:30 GMThttp://www.protectingconsumerrights.com/blog/2013/8/16/low-income-consumers-at-risk-of-being-denied-a-bank-account/
When to Pay Off Your Debthttp://www.protectingconsumerrights.com/blog/2013/5/24/when-to-pay-off-your-debt/When being contacted by a debt collector, I often hear cPiggy _bankomplaints from consumers that the debt is "too old" and the question, "how can a collector contact me about a debt that is so old?"  While the answer to this question is simple, a debt collector can attempt to collect a debt from you forever as long as he or she adheres to the guidelines of the Fair Debt Collection Practices Act ("FDCPA"), the explanation is a bit more complicated. 

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. 

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Fri, 24 May 2013 11:53:17 GMThttp://www.protectingconsumerrights.com/blog/2013/5/24/when-to-pay-off-your-debt/
FTC Fines Check Cashing Company $3.5 Millionhttp://www.protectingconsumerrights.com/blog/2013/8/23/ftc-fines-check-cashing-company-$35-million/The Federal Trade Commission ("FTC") is tightening the Justice _scalereins on data brokers to ensure fair treatment of consumers in the market place by making sure information reporting is more accurate than in years past. 

In its effort to promote this fair treatment, after numerous consumer complaints, the FTC launched an investigation against Certegy Check Services, a Florida based check authorization service company and one of the largest in the country.  After filing a formal complaint, the FTC argued Certegy's conduct violated of the Fair Credit Reporting Act ("FCRA"), and has since agreed to settle the claims and pay $3.5 million in fines. 

Under the FCRA, Certegy is considered to be a consumer reporting agency and a furnisher of information.  Essentially, Certegy provides businesses with information from its database to aid in determining whether or not to accept a consumer's check, based on his or her check writing history. Certegy also furnishes its information to other credit reporting agencies.  The FCRA states that if the information provided by a reporting company results in a check being denied, the consumer has the right to dispute the information used for the denial.  The information supplier is required to investigate the dispute within a reasonable time and correct any and all inaccurate information.  In other words, if your check is denied at a store you have a right to dispute with the check cashing service, just like your right to dispute inaccurate information on your credit report after being denied credit because of the information reported.   

According the FTC, Certegy failed to assure that the information it provided to merchants was accurate and didn't follow protocol in responding to disputes when consumers were denied the opportunity to pay by check.  The FTC also stated that Certegy failed to create a process allowing consumers who receive a denial to receive the free report that they are entitled to under the FCRA.  Furthermore, Certegy had no written procedures ensuring the accuracy of information it distributed to other credit reporting agencies. 

In its settlement, the FTC ordered that Certegy correct all its practices that were in violation of the FCRA and pay a fine of $3.5 million.  Certegy must set up a process where it can better guarantee accuracy of the information it reports, not shift the duty of the investigation onto the consumer, like it had been doing in the past; It must put procedures in place to allow consumers to dispute and to better respond to their dispute requests; It must provide consumers with their right to request a consumer report free of charge after being denied the right to pay by check.   

While most would argue that $3.5 million is not a hefty enough fine to deter a large company like Certegy, it may certainly be enough to deter conduct in violation of the FCRA from other companies moving forward and sends a clear message that this type of conduct will not be allowed.  

If you are having problems writing checks or with information on your credit report contact SmithMarco P.C. for a free case review.  

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Fri, 23 Aug 2013 12:31:23 GMThttp://www.protectingconsumerrights.com/blog/2013/8/23/ftc-fines-check-cashing-company-$35-million/
The Fair Credit Reporting Act and Employment Background Checkshttp://www.protectingconsumerrights.com/blog/2013/8/23/the-fair-credit-reporting-act-and-employment-background-checks/Under the Fair Credit Reporting Act ("FCRA") an employer is not required to conduct an employment background check but most employers do.  Whether you are a potential employee looking to get hired or currently employed at your job, the FCRA has adopted standards that employers must adhere to when conducting a background check.

In general, most consumers inquire whether they have a right to know when a background check is requested.  The plain and simple answer is YES.  Employers must provide notice and receive written consent from potential or existing employees prior to conducting a background check.  Under recent amendments to the FCRA and an opinion from the Federal Trade Commission ("FTC") employers must follow a strict protocol prior to delving into your consumer history. 

Under the FCRA, after your employer conducts a background check and uses the information to take "adverse action" against, that is terminating employment, denying your application for employment or denying your promotion, the employer must comply with the statute.  First, prior to taking adverse action, the employer must provide you with a copy of your credit report and a summary of your rights under the FCRA.  Next, after taking adverse action, the employer must provide you with an "adverse action notice."  This notice must provide the name, address, and phone number of the employment screening company, a statement that this company did not make the adverse decision, rather that the employer did, and a notice that you have the right to dispute the accuracy or completeness of any of the information in the report.

In the event there is an error on your report, there are steps you can take to repair it.  First you should discuss any inaccuracies directly with your employer.  Explain that your report contains errors and that you will launch a more formal investigation, but perhaps by explaining your situation you will be able to get your job back after clearing up the errors.  Next, file a written dispute with the employment screening company that reported the inaccuracy.  I suggest you write and not call-or do both, no harm in making a call to dispute and following it up with a letter.  Make sure to send the letter certified mail so you have proof it was received.  The process for disputing errors on your employment background check is the same as the process for disputing errors on your credit report.        

After receiving your dispute letter, the employment screening company has 30 to 45 days to investigate, just like the credit reporting agencies.  If the information you are disputing cannot be verified as accurate it must be deleted from your report.  The screening company must send you a response to your investigation with the results and you are entitled to request it also send the revised results to any employer who reviewed your report during the two years prior.

Unfortunately, an employer has no obligation to hold your job during the dispute process or change its decision to hire you or extend you that promotion.  If you are having issues with an employment background check and need advice or assistance, contact SmithMarco P.C. for a free case review.

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Fri, 23 Aug 2013 14:02:57 GMThttp://www.protectingconsumerrights.com/blog/2013/8/23/the-fair-credit-reporting-act-and-employment-background-checks/
Not All Debts Are Covered Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/8/26/not-all-debts-are-covered-under-the-fdcpa/All too often I have potential clients come to me with Piggy _bankcomplaints that they have been treated unfairly by a debt collector.  I listen to situations where the collector used profane language or spoke in a harassing voice, how a collector threatened to file suit or send the debtor to jail for failure to make payment.  These collection tactics all clearly fall within the boundaries of conduct directly in violation of the Fair Debt Collection Practices Act ("FDCPA"). One major detail can derail the entire case.   The FDCPA is the statute enacted to protect consumers from unfair and abusive treatment from debt collectors in their efforts to collect consumer debts and not all debts fall under this category. 

Many consumers do not understand what a consumer debt is and that all debts are not covered under the Act.  In today's blog I explain the definition of what a consumer debt is and is not.  The statute specifically states that to succeed on a claim under the FDCPA, a consumer must present evidence that the debt being collect what a consumer debt or a debt "primarily for personal, family, or household purposes."  Some examples of these types of debt include delinquent credit card accounts, auto loans, medical bill, utility bills, your mortgage or student loans.  Another way to determine whether a debt is considered a consumer debt is whether at the time you made the purchase whether it was for personal use. 

The FDCPA does not cover debts that are non-consumer or related to your business.  Some examples of debt that are classification as business debt and not covered under the FDCPA are:

  • Taxes.  Taxes, including property, state and federal income taxes are not consumer debts.  While this may seem contrary, taxes are not considered a consumer debt because no one voluntarily "incurs" tax debt for personal, family, or household purposes.
  • Domestic support obligations.  Most courts consider Child Support or Alimony payments as non-consumer debt.
  • Personal guarantees of business debts.  Personal guarantees of business debts are not consumer debts.  They were incurred to be utilized for a business, and thus they remain business debts.
  • Legal fees.   If your legal fees are incurred for family or household purposes, they will be considered consumer debt, however if they are incurred in connection with a business dispute then they will be considered non-consumer or business debt and not covered under the FDCPA.
  • Accident liabilities.  These are not consumer debts and are considered business debts.  Subrogation claims from an insurance company are similarly not included as consumer debts.  Though the vehicle may be for personal use there was no voluntary transaction that led to the debt.  i.e. the accident with the vehicle was not a voluntary transaction, it was an accident.
  • Parking tickets.  Parking tickets are not consumer debts. 

If you have any questions regarding whether a collector is calling to collect a debt that may or may not be a consumer debt contact SmithMarco P.C. for a free case review

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Mon, 26 Aug 2013 11:09:23 GMThttp://www.protectingconsumerrights.com/blog/2013/8/26/not-all-debts-are-covered-under-the-fdcpa/
Telemarketing Calls That Never Stophttp://www.protectingconsumerrights.com/blog/2013/6/19/telemarketing-calls-that-never-stop/Past _due _imgTelemarketers are calling you non-stop.  You no longer answer the calls, but the phone continues to ring over and over again.  What should you do and what are your rights?

What are telemarketing calls?

  • These are calls that act as an advertisement.
  • They are telephone solicitations.
  • This does not include calls where you have given express permission to the company to contact you.
  • This does not include companies or business where you have an "existing business relationship" (EBR).
  • This does not include calls from charitable groups, political organizations or surveyors. 

What is an EBR?

  • Existing business relationship occurs when you have made an inquiry, application or purchase regarding products or services. 
  • EBR is effective for 18 months after your last business transaction or 3 months after your last inquiry.

What are your options?

  • Register your number on the Do Not Call Registry.
  • Find out who is calling you.
  • Speak to a live person and ask them to stop calling.
  • If the calls are from an autodialer, you will have more options.

Is the caller using an automatic telephone dialing machine?

  • This is also known as an autodialer or robo-calling.
  • You will easily know if this is being used because there is a computerized voice that asks you hold on, press this or verify that.  There is at least one or two steps to take before speaking to a live person.

How can you stop the calls?

LANDLINE:  Register your phone number on the Do Not Call Registry.

If the calls are from an autodialer, get proof of the calls.  Start saving the voicemails and/or take pictures of the caller ID.  You need proof that you are getting these calls.

CELL PHONE:  Find out who is calling and see if you have an EBR with the caller. 

If the calls are from an autodialer, get proof of the calls.  Start saving voicemails and taking photos of the caller identification.

CALL AN EXPERIENCED LAW FIRM like SmithMarco to review your potential case at no cost to you.  Consultations are always free and confidential.

What are your rights as a consumer?
The Telephone Consumer Protection Act (TCPA) was enacted to give consumer more protection from unwanted robocalls.
Before a business an use an autodialer, it must obtain the consumer's written consent or have an EBR.

  • Consumers can bring suit against the person making those calls and recover up to $1500 per call for each violation.  If a company violates the TCPA, they are liable for $500 for each call made.  This amount can go as high as $1500 per call if the court finds that the conduct is willful or wanton.

If you are receiving calls to your cell phone from an automated, or "Robo" dialer, CONTACT US for a free case review.

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Wed, 19 Jun 2013 13:04:15 GMThttp://www.protectingconsumerrights.com/blog/2013/6/19/telemarketing-calls-that-never-stop/
Robo Calls on Your Cell Phonehttp://www.protectingconsumerrights.com/blog/2013/6/6/robo-calls-on-your-cell-phone/Unwanted calls can be disruptive and stressful.   Justice _scaleThere are laws that protect consumers against unwanted, automated sales calls on your cell phone.  Robo-calls on your cell phone that violate the Telephone Consumer Protection Act ("TCPA") will allow you to recover $500 per call.

Under the TCPA, it is against the law to call a cell phone:
■with an autodialing system and,
■without the express permission of the owner of that phone to make automated calls to the phone.

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.

Get Proof of the Unwanted Sales Call
Either save a voicemail or record a message, if you can provide proof of unwanted, automated sales calls, you can recover at $500 per call.  If the court finds the conduct was willful or wanton, they can increase the amount to up to $1500 per call.

Contact experienced consumer rights attorneys SmithMarco so you  can get the recovery you deserve.  If you are receiving calls to your cell phone from an automated, or "Robo" dialer, CONTACT US for a free case review.

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Thu, 06 Jun 2013 16:11:03 GMThttp://www.protectingconsumerrights.com/blog/2013/6/6/robo-calls-on-your-cell-phone/
Robo Calls on Your Landlinehttp://www.protectingconsumerrights.com/blog/2013/6/6/robo-calls-on-your-landline/Unwanted calls can be disruptive and stressful.    There are laws Piggy _bankthat protect consumers against unwanted, automated sales calls and your landline.

What are automated, robo-calls?
Under the Telephone Consumer Protection Act, the term "automatic telephone dialing system" means that it is equipment that stores or produces phone number to be called using a generator.   Basically, it is a computerized autodialer that delivers a pre-recorded message. 

Register on the Do-Not-Call list
Check out donotcall.gov or call 1-888-382-1222 to register your personal phone number.  You can register more than one number, but no faxes or business lines.  This is a free service.

Find out who is calling you
If you don't know the source of the calls, there is no way to stop them.
Does a phone number show up on your caller ID?
Does the automated message say the name of the company?
Have you ever spoken to an actual person with one of these calls?

Check the list of what calls are protected by the TCPA
The Telephone Consumer Protection Act covers unwanted sales calls unless you have an "existing business relationship."
An "existing business relationship" can mean two things.  First, it can mean a company that you are currently doing business with, maybe your bank or credit card company.  Secondly, it can mean a company that you purchased something.  The company can call you up to 18 months from the date of the last payment, delivery or three months after you submit an application.

Calls not covered by the TCPA and the Do-Not-Call List are calls from political organizations, charities and surveyors. In addition, calls from companies that you have an existing business relationship or have given permission to call you.

Get Proof of the Unwanted Sales Call
Either save a voicemail or record a message, if you can provide proof of unwanted, automated sales calls, you can recover at $500 per call.  If the court finds the conduct was willful or wanton, they can increase the amount to up to $1500 per call.

Experienced consumer rights attorneys SmithMarco can help you get the recovery you deserve.  We have been protecting consumer rights since 2005.  If you are receiving calls to your landline phone from an automated, or "Robo" dialer, CONTACT US for a free case review.

 

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Thu, 06 Jun 2013 15:49:04 GMThttp://www.protectingconsumerrights.com/blog/2013/6/6/robo-calls-on-your-landline/
Benefits of Registering on Do-Not-Call Listhttp://www.protectingconsumerrights.com/blog/2013/6/6/benefits-of-registering-on-do-not-call-list/Register your personal phone numbers on the Do-Not-Call Registry Justice _scaleand see how it can help you.

The Do-Not-Call List defined

  • The National Do-Not-Call Registry was established in 2003 to help people stop getting unwanted sales calls.
  • You can register your landline and your cell phone.
  • The list includes only personal phone numbers, no business number or faxes are included.

Registering for the Do-Not-Call List

  • It is free and easy to register.
  • Register online at donotcall.gov.  You will an email within 72 hours.  You must click on that link in the email for your registration to be effective.
  • You can also call 1-888-382-1222 to register by phone.
  • You can register multiple phone numbers as long as they are your numbers.  Business phones and faxes (personal and business) are not covered on the Do-Not-Call Registry.

Calls that are not covered
You can still get calls from  the following:

  • Political organizations
  • Charities
  • Callers conducting surveys
  • Companies that you have an existing business relationship.  This could mean one of the following:

1.   If you purchase something from a company, you have created a business relationship.  That company can call you   for up to 18 months after your last purchase or delivery or payment to it, unless you tell them not to call again.
2.   Calls from companies that you submitted an application up to three months after the application date.
3.   Calls from companies that you have given permission to call you

Telephone Consumer Protection Act and the Do-Not-Call List
If you continue to get unwanted sales calls, find out who is calling you.  Under the Telephone Consumer Protection Act, telemarketing calls by auto dialers are prohibited.  You can recover $500 for each prohibited calls.

How You Can Earn $500 Per Call with a few steps

  • First, provide proof that you are on the Do-Not-Call Registry.  You can check this easily online.  However,  if you registered by phone, you can also get the confirmation on the phone registered by using that particular phone. 
  • Second, find out who is calling.  If you don't know who is calling, how do you know who to go after.
  • Third,  provide proof that they are using a robo-dialer.  You can save a voicemail or record the next call.  Recording calls are easy with  cell phones.  Look at functions on your phone and you will find that it not hard.  Or if you are old school, find a tape recorder to use.  Think $500 per call and I am sure you can find a way to record that message.
  • 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. 

Experienced consumer rights attorneys SmithMarco can help you get the recovery you deserve.  We have 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.

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Thu, 06 Jun 2013 14:57:30 GMThttp://www.protectingconsumerrights.com/blog/2013/6/6/benefits-of-registering-on-do-not-call-list/
The Telephone Consumer Protection Act of 1991 and "Robo-Calls"http://www.protectingconsumerrights.com/blog/2013/1/18/the-telephone-consumer-protection-act-of-1991-and-robo-calls/The Telephone Consumer Protection Act ("TCPA") enacted in 1991, Justice _scalelimits the placement of pre-recorded telemarketing calls and all autodialed or pre-recorded calls to cell phones.  These calls are most commonly referred to as "robo-calls".  Today companies are using robo-calling more than ever either as a marketing tool to solicit new business or to collect debts.  As technology continues to expand the use of robo-calling is becoming more appealing to companies as it is an inexpensive way to reach a large mass of people. 

If you answer the phone and hear a prerecorded message in lieu of an actual person; if you receive a pre-recorded 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.

 

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Fri, 18 Jan 2013 14:27:45 GMThttp://www.protectingconsumerrights.com/blog/2013/1/18/the-telephone-consumer-protection-act-of-1991-and-robo-calls/
Multiple Calls - What Should I Do?http://www.protectingconsumerrights.com/blog/2012/8/29/multiple-calls-what-should-i-do/I get so many calls.  How do I get them to stop?Justice _scale

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 importantlycontact 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.

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Wed, 29 Aug 2012 10:59:13 GMThttp://www.protectingconsumerrights.com/blog/2012/8/29/multiple-calls-what-should-i-do/
How to Stop Robo-Callshttp://www.protectingconsumerrights.com/blog/2012/8/29/how-to-stop-robo-calls/Since cell phones have become the more popular mode of communication, Justice _scalemany consumers will go through different providers and as a result have many different phone numbers.  Sometimes a customer does not pay the bill and their service is cut off, and that phone number is given to a new customer.  For whatever reason, it is growing more common as a cell phone owner to receive calls for the former owner of that number.  It becomes more frustrating when the former owner of that number has old creditors or collectors calling.

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.

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Wed, 29 Aug 2012 10:39:59 GMThttp://www.protectingconsumerrights.com/blog/2012/8/29/how-to-stop-robo-calls/
Consumer Protection Laws & TCPAhttp://www.protectingconsumerrights.com/blog/2012/4/11/consumer-protection-laws-tcpa/The Telephone Consumer Protection Act is also known as TCPA.  It was signed into law in 1991 with the intent to protect consumers from automated calls on their cell phones. 

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.

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Wed, 11 Apr 2012 12:45:33 GMThttp://www.protectingconsumerrights.com/blog/2012/4/11/consumer-protection-laws-tcpa/
Accessing Your Credit Filehttp://www.protectingconsumerrights.com/blog/2013/3/22/accessing-your-credit-file/Your credit report is an extremely personal piece Piggy _bankof information that explains your credit history in detail in a world where we rely heavily on credit to survive. The good news is, not anyone can review this document, unless you give them permission.  As a consumer, you can review your own credit report at any time without damaging your credit score and you are entitled to a one free copy of your credit report annually from all three credit bureaus at annualcreditreport.com.  Other parties however, can only review your credit report if they have a permissible purpose which is outlined in the Fair Credit Reporting Act ("FCRA").  Below is a list of the entities that can access your credit file if they have a permissible purpose without violating the FCRA.

  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

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Fri, 22 Mar 2013 15:56:13 GMThttp://www.protectingconsumerrights.com/blog/2013/3/22/accessing-your-credit-file/
Holiday Shopping Tips to Avoid Damaging Your Credithttp://www.protectingconsumerrights.com/blog/2013/12/11/holiday-shopping-tips-to-avoid-damaging-your-credit/Shoppers spend at least twice as much as normal during the month of December as opposed to other months.  Controlling your spending is tougher than ever.  The race to spend began as the Halloween decorations were being taken down.  But if you are aware of some simple facts about your credit, you can keep your spending in control.

Avoid the credit hangover.  A credit hangover is buying more than you can afford.  This can easily avoided by planning your purchases.  Make a list and stick to it.  Also, research the best prices prior to purchasing.   With the internet, this is easy.  

Avoid last minute offers to open a credit card and save money on your purchases.  This sounds tempting, but you must realize that such a move can affect your credit score.  Opening a new credit card allows a "hard inquiry "to your credit report.  Hard inquiries indicate that you are actively trying to obtain credit, whether it is a store credit card, car loan or mortgage.  

Avoid maxing out your credit limit on your credit card.  When using a credit card, keep the balance limit in mind.  A credit card that is maxed out to its limit can lower your credit score.

Avoid using multiple credit cards.  Purchasing with multiple credit cards makes it seem as if you are not spending as much.  However, we all know that this is not true.  Make cash purchases whenever possible and if you must use a credit card, use the one with the lowest interest rate.

If you are having problems with your credit or have questions regarding your report, contact SmithMarco, P.C. for a free consultations. 

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Wed, 11 Dec 2013 09:15:27 GMThttp://www.protectingconsumerrights.com/blog/2013/12/11/holiday-shopping-tips-to-avoid-damaging-your-credit/
Credit Reporting Basicshttp://www.protectingconsumerrights.com/blog/2013/12/11/credit-reporting-basics/Each year you can pull your credit report for free.  Your credit report is the gateway to many aspects of your life.  If your credit report has errors or it is merged with another person, that doorway becomes harder to open.  Opening up a bank account, getting a car loan, obtaining a mortgage, rent an apartment or write a check at your local grocery store.  Employers and potential employers can check your background by pulling your reports.  You need to know your credit history.  Pull your report today!

There are three main credit reporting agencies - Equifax, Experian and Trans Union.  You can order your report from each agency directly or pull all three by using annualcreditreport.com website.   If you want a score, that will cost you extra. 

Trans Union
PO Box 2000                   
Chester, PA 19022-2000        
www.transunion.com
1-800-888-4213
         
Experian
701 Experian Pkwy
Allen, TX 75013
www.experian.com
1-888-397-3742

Equifax
PO Box 740256
Atlanta, GA 30374
www.equifax.com
1-800-685-1111

You don't want to make all those calls? 
You are entitled to ONE FREE COPY of each of your three credit reports each year by accessing this website: annualcreditreport.com or by calling: 1-877-322-8228.

What if I have trouble ordering my report on-line? 
Call the agency directly or mail a written request.  Remember if you send anything to the bureaus, save a copy and spend a little extra to mail it certified mail.  You always want to keep a paper trail. 

If you are having problems with your credit report or need assistance in understanding the information reporting about you contact SmithMarco P.C. for a free case review.

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Wed, 11 Dec 2013 08:43:03 GMThttp://www.protectingconsumerrights.com/blog/2013/12/11/credit-reporting-basics/
FACTA Explainedhttp://www.protectingconsumerrights.com/blog/2013/12/9/facta-explained/FACTA ("Fair and Accurate Credit Transactions Act") is a 2003 amendment to the Fair Credit Reporting Act ("FCRA") drafted with the purpose of protecting consumers from the growing trend of identity theft.  The Act primarily demands privacy of disseminated information as well as limits how consumer information can be shared. 

Since the enactment of FACTA, requirements were adopted to better protect consumers from becoming a victim of identity theft.  Under the Act, consumers are entitled to receive one free copy of their credit report annually from each of the three major credit reporting agencies, Equifax, Experian and Trans Union.  The amendment to the statute required each of the credit reporting agencies to set up the website, AnnualCreditReport.com, to provide free access to consumer reports.  In its entirety, the Act contains seven titles, a few of which are highlighted below. 

The first provision, Identity Theft Prevention and Credit History Restoration, deals mainly with the prevention of identity theft.  The first aspect of this section allows consumers the opportunity to put a fraud alert on their credit report as well as an active duty alert for military who have been deployed.  A fraud alert requires the credit reporting agencies, at the consumer's request, to put an alert on the consumer report, that he or she has been the victim of identity theft.  The alert is to remain on the consumer's file for 90 days and the credit reporting agency must notify all other agencies of the alert.  Similarly, a military or active duty alert remains on the consumer's credit file for one year, during deployment.  Consumers have the option to request an extended alert which will remain on the credit file for seven years.
  
The second aspect of this title is the truncation of credit and debit card numbers.  Under this section, businesses are prohibited from printing more than five digits of a consumer's credit card number or account number and expiration date on any receipt provided at the time of sale.  This provision is enforced with statutory damages ranging from $100 to $1000 per violation.
 
The third aspect of this title focuses on identification of possible identity theft, known as the Red Flags Rule.  This rule required the Federal banking agencies and the Federal Trade Commission to regulate identity theft occurring within financial institutions by regulating change of consumer address procedures and identity theft education programs for employees.   

The second title of the Act, Protection and Restoration of Identity Theft Victim Credit History, focuses on how the credit reporting agencies can help victims get back on track after the devastating occurrence.  This title requires the FTC and the Federal banking agencies to prepare a summary of the rights of consumers with respect to the procedures for remedying the effects of fraud and identity theft.  All reporting agencies are required to provide a summary to any consumer that contacts the agency stating he or she has been a victim of fraud or identity theft.  Furthermore, this title requires the credit reporting agencies to block the reporting of consumer information after receiving notice that the consumer has been a victim of identity theft. 
 
If you believe you have been the victim of identity theft and need the advice of assistance of counsel, contact SmithMarco P.C. for a free case review.

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Mon, 09 Dec 2013 10:39:50 GMThttp://www.protectingconsumerrights.com/blog/2013/12/9/facta-explained/
What Debt Collectors Can and Cannot Sayhttp://www.protectingconsumerrights.com/blog/2013/12/9/what-debt-collectors-can-and-cannot-say/Chances are pretty good that either you or someone you know will get a call from a debt collector in the course of your lifetime.  The collection call can be for a legitimate debt that you or your loved one have forgotten you owe or it can be for a debt that does not belong to you.  Either way, the Fair Debt Collection Practices Act ("FDCPA") was enacted to protect you from the harsh treatment of debt collectors and ensure that you are treated with respect during the collection process.  It is important to educate yourself with your rights under the statute and to be aware of what a collector may and may not say in an effort to collect the debt.

While the FDCPA does not have an inclusive list of what a collector can and cannot say to you, the following is a fairly comprehensive list of actions that violate the law and should encourage you to contact an attorney to discuss your options about pursuing a legal claim. 

  1. A debt collector cannot represent himself as a member of law enforcement, a policeman or sheriff, or as an attorney if he is not one;        
  2. A debt collector cannot threaten to arrest you or claim he has a warrant out for your arrest; Not paying your debts is not a crime and is not punishable by incarceration;
  3. A collector cannot threaten to physically harm you in an effort to receive payment;
  4. Collection agencies must place collection calls from a legitimate telephone number;
  5. A collection agency cannot threaten to sue you, garnish your wages, put a lien on your home or report your debt to the credit reporting agencies if it has no intention of doing so;   
  6. A collector cannot use profane language, cannot yell at you or use a tone that is meant to intimidate or berate you;
  7. A collector cannot disclose your debt to a third party including family, friends, neighbors or co-workers;
  8. A debt collector cannot call you before 8:00 a.m. or after 9:00 p.m.;
  9. A debt collector cannot call you at your place of employment if you have told him or he has reason to believe you are prohibited from receiving calls during work;
  10. A collector cannot place excessive calls to you at any time;
  11. A collector cannot leave a message on a family answering machine;
  12. A collector cannot use deceptive mailings, like a post card and cannot have any information regarding the debt on the outside of the envelope;  

If you have a collection agency contacting you to collect a debt and you feel your rights have been violated, contact SmithMarco P.C. for a free case review.

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Mon, 09 Dec 2013 09:52:37 GMThttp://www.protectingconsumerrights.com/blog/2013/12/9/what-debt-collectors-can-and-cannot-say/
The Truth About Credit Cardshttp://www.protectingconsumerrights.com/blog/2013/12/4/the-truth-about-credit-cards/By learning the basic facts about credit cards prior to owning one, you can rest easily knowing you will be a responsible and more financially savvy user.  Understanding the ins and outs of credit cards can make the difference between you using it responsibly or falling into the trap of financial doom.

Store Cards vs. General Purpose Cards

An important fact to understand is that there are numerous types of credit cards to choose from and selecting the card that works for your financial needs is the best way to protect yourself.  The first difference between cards is that there are private cards, which belong to a specific store (J.C. Penney, Home Depot, Macy's etc.) and can usually only be used with that specific retailer and general purpose cards, such as VISA, Mastercard, Discover, American Express which can be used anywhere.

Secured vs. Unsecured

Store charge cards and general cards are most often unsecured, meaning you need to be approved for a credit limit and can only spend up to that dollar amount before charging more.  It is important to understand that a credit limit is just the amount you are permitted to spend.  If you fail to make payment your balance owed can be more than your limit because of fees and interest added by failing to pay off your debt.

Secured cards on the other hand are protected by funds that you deposit into an account so that if you fail to make timely payments the creditor can use your deposit to pay off the balance.  Secured cards are a good way for those consumers with poor credit to get a card and build their credit rating because they are easy to be approved for.

Number of Credit Cards

According to a study conduct by FICO, a company that produces credit scores used to make decisions on whether or not you are considered financially responsible and worthy of extending credit to, the average American consumer carries 9 credit cards.  There is no perfect number of credit cards that FICO claims a consumer should carry but a safe suggestion is not to carry more cards that you can be responsible for.  A responsible consumer should use the card that best suits their needs and not switch cards because one card has reached its maximum credit limit, unless paying off your card in full each month.

Credit Card Interest Rates

Credit card interest rates have a variety of ranges depending on the card you are using and the type of consumer you are. Creditors use factors such as your credit score, income, assets, payment history and current balance of your debt to determine who will receive the best or worst interest rates.  Understand that the interest rate is the amount of money added to the balance owed when you fail to pay off your card in full every month.  Paying the minimum amount owed means the balance of your debt will continue to increase at your card's assigned interest rate until the balance is paid off in full.

Comparing Cards

Comparing cards is crucial to your financial well-being and should be done before signing a contract.  There are a lot of different cards available and finding the card that best suits your needs will serve to protect your bank account and credit rating for the long term.  The best way to decide which card is right for you is to find the card that offers you the lowest interest rate and late fees.  Interest rates will vary depending on your credit rating-the better your rating the lower the interest rate that will be available to you.

The Credit Card Contract

The contract you sign with the bank is binding and enforceable.  Read your agreement carefully prior to signing.  Important factors to look for in the contract include, your credit limit, the Annual percentage rate ("APR"; the interest charged on the balances you carry over month to month), fixed or variable APRs and fees that may apply when making late payments, performing a balance transfer or borrowing from a credit line.  Also look for statements that allow the card to alter any of the terms at any time with notice by mail.

Carrying a credit card is a necessary tool for your credit score but can also be detrimental to your financial well-being.  Be a responsible card holder, learn the facts of owning a card and make wise choices to protect your financial reputation.  If you have any questions or concerns relating to your credit, contact SmithMarco P.C. for a free case review.

 

 

 

 

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Wed, 04 Dec 2013 08:36:28 GMThttp://www.protectingconsumerrights.com/blog/2013/12/4/the-truth-about-credit-cards/
Proposed Rules and Regulations Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/12/4/proposed-rules-and-regulations-under-the-fdcpa/In its never ending quest to improve the Fair Debt Collection Practices Act ("FDCPA"), the Consumer Financial Protection Bureau ("CFPB") continues its mission to survey American consumers to determine which areas of debt collection are still causing consumers the greatest concern.

In considering the public's opinion up to this point, the CFPB has determined the area of debt collection in need of the most improvement is ensuring collection agencies are targeting the correct consumer and that they have the correct debt and supporting documentation.  Most often when a debt is sold by an original creditor for a fraction of the amount owed, creditors do not spend the time or money to forward the necessary information about the debtors during the process.  Often times, creditors solely forward the debtors' name, address and sometimes a social security number.  The CPFB will look into implementing new laws that would require an original creditor to include more specific information about the debts prior to making the sale or require collection agencies to research the debt prior to filing suit.

The CFPB has a tough job to protect consumers during the debt collection process without jeopardizing creditors' and debt collectors' rights to recover money debtors do in fact owe.  Making a change to the FDCPA that would require a creditor to include written proof of the debt as part of the sale to a collector could be a simple way to remedy a central issue currently facing the CFPB and debtors nationwide.

If you are experiencing problems with debt collection or have a complaint or area of concern, log on to the CFPB's website.  The survey is a perfect opportunity for you as a consumer and debtor to share your voice.  The CFPB wants your input so it can improve the FDCPA and better protect consumers from the harsh and abusive collection tactics that currently exist.

If you have been the victim of a violation of the FDCPA and wish to discuss your situation with counsel, contact SmithMarco P.C. for a free case review.

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Wed, 04 Dec 2013 08:19:07 GMThttp://www.protectingconsumerrights.com/blog/2013/12/4/proposed-rules-and-regulations-under-the-fdcpa/
How to Get Your Free Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/12/4/how-to-get-your-free-credit-report/Your credit score can mean the difference between being denied or approved for credit, and at what type of interest rate.  A good credit score can help you qualify for a mortgage loan, rent an apartment, be approved for a credit card and even help you get utilities connected without a deposit.  Bad credit on the other hand can be devastating to your financial welfare and can have the opposite effect, making it next to impossible to be approved for a loan, credit card, mortgage or apartment rental without a hefty deposit.  Worse yet, your credit report can deny you a job opportunity making it even more difficult to pay your bills.  The good news is consumers can always improve their credit and the first step to improvement is to get your hands on a copy of your report.

Under the Fair Credit Reporting Act ("FCRA"), as a consumer you are entitled to one free credit a report a year from the three major credit reporting agencies, Equifax, Experian and Trans Union and there are four ways to get your hands on your free copy.

Method One:

Order your credit report over the internet.  An easy way for most consumers to order their free report is over the internet. To order your report, visit annualcreditreport.com and you can order each of your three free reports simultaneously.  Make sure to only visit this website to order your report as several false websites have been created to trick consumers into purchasing a report.

Method Two:

Call toll free to order your report.  Calling toll free to the official credit report hotline at 1-877-322-8228 is another simple way to order all three of your reports.  Again, make sure to only use this number so that you do not find yourself in a position where you have left your personal identifying information in the wrong hands and not receive your credit report in return.

Method Three:

Request a report by mail.  Some consumers feel uncomfortable about using the internet and telephone, so mailing your request may be a better option.  To request your free report visit annualcreditreport.com and print and complete the official request form, before mailing it to each of the three bureaus.  Obviously, this option is less timely, but available for consumers who prefer not to provide their personal information over the internet or phone.

Method Four:

Qualifying for a free copy of your report.  The fourth way to receive a free copy of your report, and perhaps the least favorable, is to qualify for a copy.  You will qualify for a copy of your credit report when you have been denied credit, insurance or employment.  The lender or employer is required to provide you with an adverse action letter notifying you that you have been denied based on information contained in your credit report.  The notice must provide the name and address of the credit reporting agency used and allow you to order a copy of your report for no charge within 60 days of receiving the notice.

If you are in need of assistance of advice with your credit report contact SmithMarco P.C. for a free case review.

 

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Wed, 04 Dec 2013 07:29:51 GMThttp://www.protectingconsumerrights.com/blog/2013/12/4/how-to-get-your-free-credit-report/
Creditor Liability Under the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/12/4/creditor-liability-under-the-fdcpa/In a recent opinion this month decided by the United States Court of Appeals for the Second Circuit, creditors may now be held liable under the Fair Debt Collection Practices Act (" FDCPA") when hiring a collection agency to collect debt on its behalf.  In Vincent v. The Money Store ("Vincent") F.3d, No. 11-4525-cv (2d Cir. 2013), the court held on appeal that when a creditor hires a third party collection agency to collect a debt and the agency makes no effort at collection, the creditor may be held liable under the "false name exception" of the FDCPA.

In Vincent, the defendant, the Money Store, hired a law firm to send collection letters to its debtors who failed to fulfill their loan agreements. The law firm sent the letters to the alleged debtors on its letterhead as a means of intimidating the debtors into making payment, however beyond writing the letter the law firm had no real involvement in the collection activity.  In response to receiving the letter, the plaintiffs filed suit alleging the Money Store violated the FDCPA. The law firm argued that its only involvement in the collection efforts was to draft the letter to ensure compliance with the laws but the Money Store argued that the law firm had true involvement in handling the collections.

At the lower level, the district court agreed with the Money Store's argument and held that it did not exercise control over the law firm drafting the letters.  On appeal to the Second Circuit, the court reversed the ruling and held that the Money Store could be liable under the false name exception to the FDCPA, a provision in the statute that imposes liability on a creditor collecting its own debts.  Under the false name exception, a creditor could be liable under the FDCPA when using a false name, allowing the debtor to believe that the creditor was using a third party to collect a debt when it was in fact collecting the debt on its own behalf.  Using this exception, the Court held that despite the Money Store not adopting a false name, it represented that the law firm was collecting, when in reality it never gave the firm any authority to collect the debts beyond the initial mailings.

With this new ruling expanding liability of the FDCPA, creditors need to use caution when hiring a third party to collect their debts.  Creditors must ensure that they relinquish control to the third party during collection activity or they could find themselves on the receiving end of more FDCPA suits for their own collection tactics that violate the statute.

If you believe you have been the target of a violation of the FDCPA by a collection agency or original creditor, contact SmithMarco P.C. for a free case review.

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Wed, 04 Dec 2013 06:59:43 GMThttp://www.protectingconsumerrights.com/blog/2013/12/4/creditor-liability-under-the-fdcpa/
What Makes Up Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2013/11/27/what-makes-up-your-credit-score/Your FICO score is the most common credit score used to make decisions on whether or not you are considered financially responsible and worthy of extending credit to. Your credit score, specific to you, is made up of 5 components, each assigned a specific percentage.  Using the information contained in your credit report, FICO takes the data and breaks it up into five categories.  The following is a list of the five categories and an explanation of how each category contributes to your overall score. 

Payment History:

Payment history makes up 35% of your total score, making this category the most important and influential factor in determining your score. While each account you maintain is reported with your repayment history, FICO attributes your failure to repay larger loans as more damaging to your score and states the easiest way to improve your score is by making timely and consistent payments. 

Credit Utilization:

The area of credit utilization, the amount of available credit that you borrow or use, makes up 30% of your score, still contributing to a large chunk of how your score is calculated.  In simpler terms, credit utilization is how much of your available credit you have used.  For example on your credit card, are you close to you maximum limit or do you try to keep your balances low by paying off the card in full every month or making an effort to pay a good majority of the debt?  FICO says that utilizing about 10 to 20% of your available credit is a reasonable amount to help you maintain a good score.    

Length of Credit History:

The length of time you have maintained each account makes up 15% of your credit score.  Consumers who have maintained positive accounts for longer periods of time will benefit from their financial responsibility and be able to improve their score.  Obviously, if you are new to the world of credit, it will be next to impossible to have a perfect score, so the sooner you start to build credit the closer you will be to improving your score.   

New Credit:

While new consumers will not reap the benefit of building their score from a previous credit history, opening and maintaining new accounts makes up about 10% of your score.  While a credit newbie should avoid opening too many new accounts, opening a few at a time will and making timely payments will build your credit and show you are financially responsible.  FICO encourages consumers to open accounts only as necessary to avoid looking like you are in financial trouble and need access to credit, which would deter lenders from extending you credit.

Variety of Credit:

FICO says that having a variety of debt will improve your score and attribute to your overall score by as much as 10%.  Maintaining credit cards and installment loans will help keep your score positive and show lenders that you are less of a credit risk by your ability to pay off a variety of debt in a timely fashion. 

If you need assistance or advice about how to improve your credit score, contact SmithMarco P.C. for a free case review.

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Wed, 27 Nov 2013 07:09:39 GMThttp://www.protectingconsumerrights.com/blog/2013/11/27/what-makes-up-your-credit-score/
Consumer Laws You Should be Aware ofhttp://www.protectingconsumerrights.com/blog/2013/11/20/consumer-laws-you-should-be-aware-of/In a recent review conducted by the Consumer Financial Protection Bureau ("CFPB"), the agency in charge of protecting your financial welfare, it discovered that the biggest area of concern is that consumers nationwide are unaware of their rights and the numerous laws in existence that were enacted to protect them.  Below is a list of the different laws that consumers should be aware of to be better equipped to protect themselves against original creditors and debt collectors.

The Fair Credit Reporting Act ("FCRA")
This law has been in existence since 1970 and is perhaps one of the two most well recognized consumer statutes.  The FCRA states that consumers and their credit report must be safeguarded, report accurate information and must be accessible to the consumer at their request. 

Fair Debt Collection Practices Act ("FDCPA")
Enacted in 1977, the FDCPA is the other statute most well-known by consumers nationwide.  This statute protects consumers from the unfair and harassing collection tactics of debt collectors in their efforts to collect unpaid debt. 

Equal Credit Opportunity Act ("ECOA")
This ECOA adopted in 1974, protects minorities from creditor and lender discrimination when applying for loans. 

Truth in Lending Act ("TILA")
TILA was enacted in 1978 to ensure that consumers applying for a loan were completely aware of what they were applying for.  This statute requires full disclosure to consumers.   

Fair Credit Billing Act ("FCBA")
The FCBA, enacted in 1974 is a statute that is specific to credit card holders and regulates the procedures that credit card companies must adhere to when sending bills and reporting a consumer's billing cycle.

Fair Credit and Charge Card Disclosure Act 
This statute, adopted in 1988, simply requires a credit card issuer to notify its holders of all of the features the card has to offer.

Knowing your rights and knowing that there are laws enacted simply to protect you will ensure your safety and more educated consumer is less likely to be taken advantage of.  If you are in need of additional information and need the advice of counsel, contact SmithMarco P.C. for a free case review.

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Wed, 20 Nov 2013 08:24:41 GMThttp://www.protectingconsumerrights.com/blog/2013/11/20/consumer-laws-you-should-be-aware-of/
Recent Case Law Explains Increase in TCPA Claimshttp://www.protectingconsumerrights.com/blog/2013/11/15/recent-case-law-explains-increase-in-tcpa-claims/In a post last month I discussed how Fair Debt Collection Practices Act ("FDCPA") suits have been on the decline over the past year while Telephone Consumer Protection Act ("TCPA") claims have continued to grow and are up as much as 70% this year alone.  An obvious reason for this decline and increase is the environment we live-in, where we are virtually attached to our cellular phones.  The more companies that reach out to their debtors for collection by calling mobile numbers, the more likely it is TCPA complaints will continue to rise. 

While companies are clear as to what their boundaries are in regards to contacting consumers using autodialers and automated voice messaging, there is still a great amount of ambiguity under the TCPA allowing for the growing number of cases filed each year.  The clearest explanation for the increase in TCPA lawsuits is as a result of the opinion decided earlier this year in Soppet v. Enhanced Recovery Corp. ("Soppet"). 

In Soppet, the U.S. District Court for the Eastern District of Illinois held that under the TCPA a "called party" is the person who actually receives the call and a person can file suit under the statute even if the consumer is not the "called party".  In Soppet, AT&T believed two of its customers, Soppet and Tang, were in debt to it and hired Enhanced Recovery Corp. ("Enhanced") to collect the debt on its behalf.  The customers provided AT&T with their cellular telephone numbers as their contact information which Enhanced used to contact them on numerous occasions to collect the debt.  When calling Soppet and Tang, Enhanced used automated or predictive dialing systems and left several prerecorded messages addressed to them. 

Under the TCPA it is illegal to call a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice without prior consent.  Soppet and Tang sued Enhanced for violating the TCPA when it placed numerous calls using an automated system to their cell phones, arguing that while they provided AT&T, the original creditor, with their cellular numbers, they never gave consent to use the numbers as a means of communication.

In response to the suit, Enhanced argued that both Soppet and Tang were not the "called parties" under the statute and could not file suit, however the court rejected this argument stating the TCPA is clear that any recipient of a call may file suit under the TCPA.  Enhanced also argued that it was not in violation of the TCPA as it had the debtors' prior express consent to make the phone calls.  Again, the court rejected Enhanced's argument as the consent was given to AT&T and not directly to Enhanced and prior consent is not sufficient.  The court held that prior consent to AT&T does not serve as express consent of the called party required by the TCPA for autodialed, non-emergency calls to cell phone numbers.

If you believe you have experience a violation of the TCPA and would like the advice or assistance of counsel, contact SmithMarco P.C. for a free case review.

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Fri, 15 Nov 2013 12:58:59 GMThttp://www.protectingconsumerrights.com/blog/2013/11/15/recent-case-law-explains-increase-in-tcpa-claims/
CFPB to Take Public Opinion Poll Prior to Amending the Existing FDCPA Ruleshttp://www.protectingconsumerrights.com/blog/2013/11/15/cfpb-to-take-public-opinion-poll-prior-to-amending-the-existing-fdcpa-rules/As the new year approaches the Consumer Financial Protection Bureau ("CFPB"), the agency in charge of consumer financial affairs, begins its discussion of necessary amendments to the Fair Debt Collection Practices Act ("FDCPA").  The director of the agency stated it wants to hear what the agency needs to do to better protect consumer from the harsh treatment of debt collectors without simultaneously hindering the legitimate efforts of the industry.  The agency's goal is to better protect consumers nationwide without halting the industry's genuine goal of collecting unpaid debt.  

In a recent poll of American consumer, the most common complaints of debt collectors included harassing telephone calls, collectors' refusal to validate debts and collectors reporting debts on consumer credit reports without first contacting consumers for payment.  Not far behind on the pole was a valid concern that collectors are using social media and the internet to collect debt as we continue to move into a more technology based society. 
 
The CFPB will review all of its complaints from the past year to determine how it can improve and update the FDCPA to better protect consumers.  History has shown that the efforts of the CFPB are working as FDPCA suits are on a steady decline over the past two years.  The CFPB argues that the need for continued improvement of the FDCPA is evidence by the number of consumers who are still mistreated by collectors and the number of consumers that make payment on a debt that they did not owe just to stop the harassment.   

In its effort to amend the FDCPA the CFPB will reportedly publish a lengthy questionnaire relating to debt collection, asking consumers to respond to over 150 questions regarding their experience and treatment by collection agencies.  To be a part of this survey or to file a complaint with the CFPB log on to their website .

If you are having problems with debt collection and would like the assistance or advice of counsel contact SmithMarco P.C. for a  free case review.

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Fri, 15 Nov 2013 12:13:30 GMThttp://www.protectingconsumerrights.com/blog/2013/11/15/cfpb-to-take-public-opinion-poll-prior-to-amending-the-existing-fdcpa-rules/
Seventh Circuit Confirms that FCRA Claims are to Remain Solely in Federal Courthttp://www.protectingconsumerrights.com/blog/2013/11/13/seventh-circuit-confirms-that-fcra-claims-are-to-remain-solely-in-federal-court/The Fair Credit Reporting Act ("FCRA") is the federal statute that protects consumers from the collection, dissemination, and use of consumer credit information.  If you have been the victim of conduct in violation of this statute you likely filed suit in federal court.  Despite the fact that most states have their own independent laws in place to protect their citizens from identical violations, the FCRA preempts or takes precedence over, the conduct and a consumer can only seek remedy in a federal court in their jurisdiction. 

Specifically, under the FCRA credit reporting agencies and furnishers of information, such as credit card companies, banks and lenders, are liable for reporting false or inaccurate information and failing to conduct a reasonable investigation into this information after receiving notice of its inaccuracy from the consumer.  In a recent opinion, the Seventh Circuit reaffirmed this long standing rule that the FCRA preempts all state law claims, in Aleshire v. Harris, N.A. ("Aleshire").
  
In Aleshire, the plaintiff Suzanne Aleshire ("Aleshire") applied for a multi-million dollar loan from Harris Bank.  Upon acceptance, when the bank reported the loan to the credit reporting agencies, it allegedly reported the loan information inaccurately with incorrect balances and duplicate accounts, and showed she exceeded her credit limit.  After discovering the inaccurate information, Aleshire disputed with the credit reporting agencies and Harris Bank as required by the FCRA, however the information was verified as accurate and remained on her credit file.  In response, Aleshire filed suit alleging violations of both the FCRA and state law claims however the federal court dismissed her state law claims in the initial states of litigation. 

Aleshire, appealed this decision to the Seventh Circuit arguing that the FCRA only preempts state law claims arising under state statutes not claims arising under the common law.  In support of her argument, Aleshire highlighted a section of the FCRA precluding a consumer from alleging conduct such as defamation, invasion of privacy and negligence against furnishers of information unless such conduct is willful or done with the intent to harm the consumer. 

In response to her argument, the Seventh Circuit stated that while Aleshire's argument is not unreasonable, the state laws and federal laws she is filing suit under have consistent remedies and will provide her with the identical recovery for the violations she suffered.  Despite a few courts allowing duplicate filing, the Seventh Circuit affirmed the decision of the district court and rejected Aleshire's argument dismissing her state law claims only and allowing her to proceed with her FCRA claims at the district court level.

If you have issues with information on your credit report and need the assistance or advice of counsel as you believe you have suffered a violation of the Fair Credit Reporting Act, contact SmithMarco P.C. for a free case review.

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Wed, 13 Nov 2013 13:22:23 GMThttp://www.protectingconsumerrights.com/blog/2013/11/13/seventh-circuit-confirms-that-fcra-claims-are-to-remain-solely-in-federal-court/
Avoiding Debt Collection Scamshttp://www.protectingconsumerrights.com/blog/2013/11/11/avoiding-debt-collection-scams/Collectors can be ruthless in their collection efforts, especially during this time of year.  As a consumer, it is our obligation not to give in to their scrupulous tactics and let them convince you into handing over a payment you may not even owe.  Collection scams are becoming more common than ever as more and more consumers fall prey to the pressure of a collector. 

After a recent settlement of a claim filed by the Federal Trade Commission ("FTC"), the FTC announces consumers need to be aware of how scams work and what to do to avoid becoming a victim.  The FTC found that a typical scam used by bogus collectors is leaving voicemail messages threatening to file suit against the debtor.  Collectors falsely identify themselves as special investigators, police officers or lawyers to make the messages sound more official and intimidating.  The majority of consumers would return the message out of fear of being sued, garnished or sent to jail even if positive he or she did not have any debt.  For the small percentage of consumers that do not return the call, the calls will continue and more than likely become more harassing, calling you at work and at inconvenient hours.       

Avoiding a scam collection situation is as easy as knowing your rights under the Fair Debt Collection Practices Act ("FDCPA").  Calling back a collector is not a bad idea, especially if the calls continue, just make sure you have no intention of making payment until the collector can prove with absolutely certainty the debt is yours. 

  1. Ask the collector to provide you with validation of the debt.  Collectors are required by law to provide you proof of the debt in writing and a refusal to do so, means the collector is more than likely a fake. 
  2. If you believe the collector is fictitious ask for his or her name and the name and address of the collection agency.  Use your available resources to confirm the name of the agency and its legitimacy.
  3. Never provide the collector with any of your personal information, including your full name, social security number, address, account number, etc.  A legitimate collector would already have all of your information and should be providing it to you.
  4. Review your credit report for the debt the collector claims you owe.  If you in fact owe a debt, the original creditor more than likely reported the account as unpaid on your credit file.
  5. Don't be fooled into thinking because a collector has your personal information the debt is legitimate and you are obligated to make payment.
  6. Understand, legally you cannot be sent to jail for failure to pay a debt, as it is not a crime, and to garnish your wages you must first be served with a lawsuit and have the opportunity to represent yourself in a court of law.

Be aware of your rights under the FDCPA.  If you are in need of advice of assistance in dealing with a collection agency contact SmithMarco P.C. for a free case review.

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Mon, 11 Nov 2013 08:49:04 GMThttp://www.protectingconsumerrights.com/blog/2013/11/11/avoiding-debt-collection-scams/
Improving Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2013/11/11/improving-your-credit-score/When it comes to a low credit score, understand you are not alone.  More than 30 million consumers nationwide have a credit score of 620 or less making it more than a little bit difficult to be approved for credit at a low interest rate.  Your credit score is the three-digit number calculated by using the information contained in your credit report.  Your score is designed to notify lenders whether you should be considered a credit risk or the type of consumer lenders would want to extend credit to.  Essentially, your score is an indication of your financial behavior.

Improving and maintaining a good credit score can be a daunting task, but is essential to your livelihood as a consumer.  A low credit score can mean lenders, landlords and employers will refuse to extend you credit, rent you an apartment or even hire you for a job.  A low credit score can deny you use of a credit card, car loan, mortgage loan, insurance and utility service and a low score can follow you for as long as ten years.     

On the contrary, consumers with a good credit score, 700 or higher, will receive the best interest rates and payment terms, allowing them to save for their future and live a more comfortable lifestyle.  Becoming a consumer with a good credit score who is considered financially responsible is not impossible if you follow a few tips recommended by the Federal Trade Commission and the Consumer Financial Protection Bureau, the two agencies in charge of consumer affairs.   

Tip 1: 

Make an effort to pay all of your bills on time.  Even though your credit report may not be pristine, the older your negative accounts, the less they will affect your score.  Paying your bills in a timely fashion despite an already low credit score will show lenders you are serious about your obligations and improve your score over time. 

Tip 2:

Make an effort to keep your credit card balances low.  While you may make timely payments each month, part of your score includes your debt to credit ratio.  This means that if your account balances are exceeding or close to your credit limit your score will suffer as a result.  Trying to make large monthly payments or not charging your maximum credit limit each month will improve your score.

Tip 3:

Review your credit report on a regular basis to ensure its accuracy.  The Fair Credit Reporting Act entitles you to at least one free credit report a year.  Make sure to order your report at www.annualcreditreport.com to guarantee it is reporting only accurate information.  Mistakes can and do happen and can be devastating to your score.  Review your report and take the proper action if errors appear. 

Tip 4:

Establish a budget that is realistic for you.  Keeping to a budget will allow you to live within your means and make sure you have money to pay your bills and not overspend having a positive effect on your score.

If you need assistance with reviewing your credit report or advice about improving your score contact SmithMarco P.C. for a  free case review.

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Mon, 11 Nov 2013 08:14:07 GMThttp://www.protectingconsumerrights.com/blog/2013/11/11/improving-your-credit-score/
Communicating with a Debtor During Bankruptcy Proceeedingshttp://www.protectingconsumerrights.com/blog/2013/11/1/communicating-with-a-debtor-during-bankruptcy-proceeedings/In the recent decision of Simon v. FIA Card Services, N.A. ("Simon"), the Third Circuit tackled the much debated issue of whether communication with a debtor during bankruptcy proceedings is considered a violation of the Fair Debt Collection Practices Act ("FDCPA").   In its opinion, the Third Circuit held that consumers are not barred from pursing claims against a collector for communication during this sensitive time period that violate the FDCPA.

In Simon, Stacey and Robert Simon ("Simons") filed for bankruptcy under Chapter 7.  During the proceedings, the Simons submitted a scheduled including an unsecured, non-priority claim credit card debt owed to Bank of America, now FIA Card Services ("FIA").   FIA retained the assistance of a law firm to represent its interests in the Simons' bankruptcy proceeding.  In an effort to be included in the proceedings the firm sent both the Simons and their attorney a letter stating FIA was planning to challenge the fact that the debt was dischargeable or alternatively offered to forego the challenge if the Simons agreed to pay off the debt for an agreed upon amount. 

In response to the letter, the Simons filed suit, alleging FIA violated their rights under the FDCPA by pursing a debt during bankruptcy.  The district court dismissed their claims stating they were barred by the Bankruptcy Code and furthermore, that their allegations were insufficient to state a claim under the FDCPA.  Dissatisfied with the outcome, the Simons appealed to the Third Circuit, who disagreed with the decision of the lower court. 

In its opinion, the Third Circuit rejected the law firm's argument that the FDCPA was inapplicable because its communication with the Simons should not be viewed as a demand for payment or an attempt to collect a debt.  The Court held that the FDCPA applies to any type of communication where the end result is to collect payment.  The firm's letter was in fact an attempt to settle the debt and receive payment in lieu of the firm filing a separate suit to re-characterize the type of debt so that it could be included in the bankruptcy. 

Second, the Court held that the allegations did in fact state a viable claim under the FDCPA.  The FDCPA specifically prohibits collectors from " threatening to take any action that cannot legally be taken or that is not intended to be taken" and "falsely representing or implying that documents are legal process" under1692e.  The Simons sufficiently showed the existence of this conduct on behalf of FIA, by threatening to file suit if payment was not agreed upon. 

The moral of the story is crystal clear, when communicating with a debtor in a bankruptcy proceeding collectors must comply with the FDCPA as they would when communicating with a non-bankrupt debtor or be subject to the consequences. 

If you feel your rights have been violated under the FDCPA and you wish to speak with an attorney, contact SmithMarco P.C. for a free case review. 

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Fri, 01 Nov 2013 13:57:36 GMThttp://www.protectingconsumerrights.com/blog/2013/11/1/communicating-with-a-debtor-during-bankruptcy-proceeedings/
FTC Orders a Stop to Collection of Phantom Payday Loanshttp://www.protectingconsumerrights.com/blog/2013/11/1/ftc-orders-a-stop-to-collection-of-phantom-payday-loans/Collection of phantom payday loans is recently becoming more of a common practice for collectors and the Federal Trade Commission ("FTC") has investigated the scam and put a stop to a group of fictitious collection agencies this past week.  Debt collectors are hounding thousands of consumers nationwide for payday loan debts they don't actually owe. 

The FTC focused on the scam which appears to target consumers who applied for payday loans over the internet regardless of whether or not they took out a loan.  The FTC announced a lengthy list of collection agencies they ordered to shut their doors, cease all communication with consumer debtors and pay hefty fines for their blatant violations of the Fair Debt Collection Practices Act ("FDCPA").  A list of these fictitious agencies based mostly in Georgia and Ohio include Pinnacle Payment Services LLC, Velocity Payment Solutions LLC, Heritage Capital Services LLC, Performance Payment Processing LLC, Credit Source Plus LLC, Credit Source Plus LLC, Reliable Resolution LLC, Premium Express Processing LLC, and Premium Express Processing, LLC.

In response to almost 3,000 complaints received from consumers, the FTC launched a formal investigation.  Based on their findings, the FTC filed a formal complaint alleging that these collection agencies operated under fictitious business names that led debtors to believe they were affiliated with a law firm or law enforcement, a clear violation of the FDCPA.  The collectors used robo-calls and voice mail messages threatening to take legal action against the debtors and threatening to arrest the debtors if payment was not received within a few days time, a process that was extremely successful and coerced fearful debtors into making payment on debts they did not in fact owe.
 
The complaint further alleged, the collectors threatened to drain debtors' bank accounts and garnish their wages.  Collectors threatened to file felony charges against debtors for refusal to pay and to arrest debtors at their place of employment and to drag them into legal proceedings that would be costly and located far from their homes, all actions which of course are in violation of the FDCPA.

Taking advantage of thousands of unsuspecting consumers is exactly the reason the FTC and Consumer Financial Protection Bureau have targeted their efforts on stopping collection agencies from violating the law.  If you have been the victim of a scam debt collector and need the advice and assistance of counsel, contact SmithMarco P.C. for a free case review.

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Fri, 01 Nov 2013 13:40:27 GMThttp://www.protectingconsumerrights.com/blog/2013/11/1/ftc-orders-a-stop-to-collection-of-phantom-payday-loans/
Are Credit Repair Companies Worth Your Dime?http://www.protectingconsumerrights.com/blog/2013/11/1/are-credit-repair-companies-worth-your-dime/Today, you cannot avoid the bombardment of ads for credit repair companies, promising to boost your credit score and do away with your bad credit forever.  Despite the fact such offers are obviously appealing, consumers should beware there is no quick fix and such claims are likely the sign of a scam you are better off avoiding. 

The harsh reality is, there is no immediate solution to repair your credit and the only sure fire way to fix your score is with a little patience and a lot of time.  Legitimately improving your credit score takes knowledge and commitment to coming up with a plan to pay off your debt and continuing to make payment of all of your bills in a timely manner.  A credit repair company cannot usually make good on the promises they offer as accurate negative information cannot be removed from your report, so forking over money to a company to dispute information that is rightfully reporting is more than likely a waste of money you could be using to pay off your debt.

The Federal Trade Commission ("FTC") put together a list of conduct consumers should be weary of in an effort to protect you being taken advantage of.

  1. Never pay a credit repair company up front.  Make sure the company does the work before you hand over your hard earned money.
  2. Make sure the company does not charge you for free information.  Credit repair companies should not just recite you the Fair Credit Reporting Act ("FCRA") and send you on your way.  These companies must actually do the disputing for you and follow up for the results.
  3. Avoid a credit repair company that advises you to cease all communication with the credit reporting agencies and that advises you it can remove accurate derogatory information from your report.   
  4. A legitimate credit repair organization should never advise you to dispute information that is up to date and accurate despite it being negative. 
  5. Accurate negative information cannot legally be removed from your credit report so a promise to do so can be viewed as a violation of the law.  The "FCRA" allows you to dispute inaccurate information from your credit report at no cost so anything a credit repair company can do, you can also do on your own behalf free of charge.  Before agreeing to start the services with a credit repair company know that it cannot falsely represent their services and cannot charge you until completing their promised services. 

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

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Fri, 01 Nov 2013 12:54:09 GMThttp://www.protectingconsumerrights.com/blog/2013/11/1/are-credit-repair-companies-worth-your-dime/
Credit Reporting Agencies Other Than the Big Three Required to Follow the FCRAhttp://www.protectingconsumerrights.com/blog/2013/9/3/credit-reporting-agencies-other-than-the-big-three-required-to-follow-the-fcra/In the wake of repairing the crashing housing market, the next financial crisis seems to be focused on automobile lending.  While several years ago the major automobile corporations were at great risk of closing their doors, the industry giants have made a substantial comeback with the assistance of our government.  The main reason for this industry flourishing, the rapid growth of subprime auto loans available to consumers in the market to purchase vehicles they probably cannot afford.    Subprime auto loans are loans given to higher risk consumers, which naturally will have a higher interest rate on the borrowed money.

Consumers buying into these subprime vehicle loans are at great risk as the repayment terms of the loans often exceed the life of the vehicle leaving the consumer owing more money on the vehicle that it is actually worth at a time when the vehicle is hardly functioning.  In an effort to qualify a consumer with a less than stellar credit history, auto lenders are turning away from using credit reports from the three major credit reporting agencies, Equifax, Experian and Trans Union and instead using alternative consumer credit reports .  These alternate means are private databases used by lenders which I have discussed in detail in a previous blog, that report information such utility bill repayment history, cellular phone bills and lease agreements. 

This type of public data is introducing a new era of credit reporting.  With computers tracking consumers every move, widespread information on consumers has become more available.  Luckily for consumers, the Fair Credit Reporting Act ("FCRA"), the law enacted to protect consumers from unfair treatment by the credit reporting agencies and furnishers of information, will police the conduct of these databases as well.   
   
Just as a consumer would dispute inaccurate information with the credit reporting agencies, consumers have the same right to dispute information inaccurately reported by these databases.  If you are not approved for an automobile loan, the lender must provide you with a copy of the reasons you were denied.  You are entitled to a copy of the report the lender used to base its decision at your request, and you must dispute in writing the inaccurate information reported by these databases. 

If you are having issues being approved for a loan and believe you have inaccurate information on your credit report or in a database reporting your payment history, contact SmithMarco P.C. for a free case review

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Tue, 03 Sep 2013 13:19:58 GMThttp://www.protectingconsumerrights.com/blog/2013/9/3/credit-reporting-agencies-other-than-the-big-three-required-to-follow-the-fcra/
Credit Reporting Agencies for Employment Background Checkshttp://www.protectingconsumerrights.com/blog/2013/9/12/credit-reporting-agencies-for-employment-background-checks/Consumers should be aware that you are supposed to review your credit report on a regular basis to ensure the information reporting on them is accurate.  Most consumers however are not aware of the fact that there are more than just the three major credit reporting agencies out there reporting your personal information that can have a great effect on their lives. 

Under the new amendments to the Fair Credit Reporting Act ("FCRA"), during an employment background check, the employer is required to provide  notice that they are going to access a persons credit file to obtain personal information during the interview process.  You must provide the employer with written consent to access your information.  The catch is, even if you accessed your credit report prior to submitting a job application to assure the accuracy of the information reporting, it may not be the same information your potential boss is obtaining.     

Since employment background checks have become a major factor in the employment field, companies like Equifax Workforce Solutions ("EWS"), a subsidiary of the credit bureau Equifax, have been established for the sole purpose of verifying employment history and income information of applicants.  EWS obtains its information on consumers directly from its employer clients and is a separate business from the credit bureau.  The service was created to assist employers requesting salary and employment history information of job applicants.  

Employers provide EWS with payroll data and employment history and then make it available for a fee to other entities authorized to receive the private information, including employers, banks and collection agencies.  EWS states it is in compliance with the FCRA and that it provides your personal information only to those requesting it with a legitimate purpose.  It further states that it must have the consumer's written consent prior to turning over the information.  EWS claims accuracy of its data as each consumer's information is maintained by the employer who provides it to EWS and it is not distributed to any other background checking company.    

Unfortunately, unlike with credit reporting agencies, there are no websites set up for you to obtain a free copy of the information reporting on your salary and employment history, but you can however go to each of these companies and request a copy of your information.  The report will likely include all employment records the company has on file for you and will report any companies that have requested your data over the last two years.   

If you are having issues with your credit report or need additional information on employment background checks contact SmithMarco P.C. for a free case review. 

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Thu, 12 Sep 2013 12:58:32 GMThttp://www.protectingconsumerrights.com/blog/2013/9/12/credit-reporting-agencies-for-employment-background-checks/
Five Requirements of Employment Background Checks under the FCRAhttp://www.protectingconsumerrights.com/blog/2013/9/12/five-requirements-of-employment-background-checks-under-the-fcra/Seeing as I have focused my recent blogs on the topic of the Fair Credit Reporting Act ("FCRA") and compliance with the statute when conducting an employment background check, I think it is a good time to provide you with a summary of the requirements of employers when screening applicants.  Below is my list of the five requirements of employers when requesting a background report. 

  1. The employer must provide the employee or job applicant with a written disclosure of its intent to request an investigative consumer report.  This notice must be clearly understood by the employee or applicant.
  2. The employee must give the employer express authorization to obtain a consumer report on the employee or applicant.
  3. After receiving the consumer report, the employer must notify the employee or applicant if it plans to take "adverse action" against the individual based on any information obtained from the report. 
  4. The employer must present the employee or job applicant with an "adverse action" notice explaining that it has based its decision not to continue employment or to hire the employee or applicant based on the information contained in the report and the name and address of the consumer reporting agency used in making this decision. 
  5. After adverse action is taken against the employee or applicant, the employer must provide the individual with "A Summary of Your Rights Under the Fair Credit Reporting Act".

If you have recently applied for a job or promotion and your employer or potential employer has not followed all of the above referenced steps, contact SmithMarco P.C. for a free case review. 

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Thu, 12 Sep 2013 13:31:36 GMThttp://www.protectingconsumerrights.com/blog/2013/9/12/five-requirements-of-employment-background-checks-under-the-fcra/
Collecting on Your Debt After Filing for Bankruptcyhttp://www.protectingconsumerrights.com/blog/2013/9/27/collecting-on-your-debt-after-filing-for-bankruptcy/Most consumers file for bankruptcy because the amount of debt they have amassed is more than they are capable of paying off.  Issues such as a loss of employment, health problems, or work injuries can cause debts to pile up.  Accruing debt causes financial stress, especially when being hounded by creditors and debt collectors wanting money that you do not have.  Filing for bankruptcy puts a stop to this conduct and allows consumers a fresh start essentially prohibiting creditors and collectors from taking action against them.

When you file for bankruptcy, the Bankruptcy Court grants an automatic stay.  This means that all collection activities must cease any collection attempts including telephone calls, letters and garnishments.  Any creditor who attempts to collect on your debt during this time will be in violation of the law.  Regardless of the legal ramifications, collectors often times ignore or are ignorant of the law and continue their collection efforts-which is still no excuse.  Make sure to notify the creditor or collector that you have filed for bankruptcy and they are in violation of the law and must cease all collection efforts.  The bankruptcy code and the Fair Debt Collection Practices Act ("FDCPA") is clear that an automatic stay absolutely bars a collection agency from continuing its collection efforts during this period.

If a creditor insists that it has not received notice from the court that you have filed for bankruptcy, offer to provide the paperwork to the creditor.  If the creditor still refuses to cease its collection efforts, provide the collector with the name and contact information of your attorney.

Going through a bankruptcy filing is traumatic enough for a consumer and the added pressure of collectors calling attempting to collect on debt that you cannot afford is unnecessary and in violation of the law.  Knowing your rights will protect you from the unscrupulous treatment of debt collectors. 

All creditors and collectors have a duty to use reasonable means of determining whether or not you have filed for bankruptcy before attempting to collect on your debt.  If you have filed for bankruptcy and are still being harassed contact SmithMarco P.C to discuss your situation in greater detail and to see how we can be of assistance to you.

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Fri, 27 Sep 2013 07:06:49 GMThttp://www.protectingconsumerrights.com/blog/2013/9/27/collecting-on-your-debt-after-filing-for-bankruptcy/
Fact or Fiction: The Truth About Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2013/9/27/fact-or-fiction-the-truth-about-your-credit-score/Regardless of what you are purchasing, when applying for a mortgage loan, buying a car or opening up a credit card, lenders want to know what type of risk they are taking before handing over their money.   Lenders use your credit score as a gage for whether or not to lend you money, how much money to lend you and at what rate.  Your credit score is calculated using the information contained in your credit report so it is important to know what is fact and what is fiction when it come to your number. 

Fiction:  A low credit score will stay with me forever

Fact: The fact is your credit score is ever changing.  Just because you have a low score one month, does not mean that you are stuck with that score for an indefinite period of time.  Credit scores can change on a dime depending on how you are paying your debts and how much debt you are carrying.  Your score will change as new information is added to your credit file and the good news is lenders always request a current copy of your report and your credit score before making a determination about whether or not to extend you credit.  If you have a low score now, you should not expect it to turn into a good score overnight, or even in one months time.  It may be gradual, but you are not stuck with a bad score forever.

Fiction:  If I have a low score I will not be approved for credit 

Fact:  Lenders do not solely look at your credit score to make a determination whether or not to extend you credit.  In fact, several factors go into making this decision, including your income, your employment history and your credit history.  This information combined with your credit score will aid lenders in making an informed decision about how much money to lend you and at what interest rate.   Some lenders will lend you money no matter what your score is, however, you should expect a higher interest rate if you have a lower score.

Fiction:  My credit score takes into account factors like my race and socioeconomic class

Fact: The Equal Credit Opportunity Act is the law that was enacted by Congress specifically to avoid lenders taking into account your race, socioeconomic status, marital status and gender in making a determination regarding granting consumers credit.  Lenders are prohibited from using this information on any level.

Fiction:  Submitting credit applications will hurt my score

Fact: Submitting credit applications will not affect your score enough to do any real damage.  In fact, lenders are more likely to look at a consumer who shops around from the best deal as more responsible.   Furthermore, multiple inquiries for the same type of credit are usually treated as a single inquiry and will have little impact on your score.   If, however, you are applying for many different types of credit all within a short period of time, then the multiple applications for credit can begin to affect your score.

If you are having issues with your credit and need assistance, contact SmithMarco P.C. for a free case review. 

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Fri, 27 Sep 2013 07:25:30 GMThttp://www.protectingconsumerrights.com/blog/2013/9/27/fact-or-fiction-the-truth-about-your-credit-score/
Collection Agency Using Text Messaging to Collect Debtshttp://www.protectingconsumerrights.com/blog/2013/10/4/collection-agency-using-text-messaging-to-collect-debts/National Attorney Collection Services, Inc. and National Attorney Services, LLC, two California based collection agencies, were ordered by the Federal Trade Commission ("FTC") to pay $1 million in fines for violating the Fair Debt Collection Practices Act ("FDCPA").  The FTC took action against the two partnered agencies for using text messaging in its attempt to unlawfully collect debts from consumers.

In its formal complaint, the FTC alleged that the two collection agencies sent texts using English and Spanish and placed phone calls where the collectors failed to disclose that they were a collection agency calling to collect a debt.  In the text messages, phone calls and mailings the collectors falsely represented themselves as attorneys and threatened to sue the consumers and garnish wages for refusal to pay. 

The FTC further alleged that the agencies illegally disclosed information regarding the debts to family members, friends and co-workers, conduct which is directly in violation of the FDCPA.  Moreover, the agencies sent collection letters in envelopes imprinted with a picture of an arm shaking money from a debtor who hung upside down.  The FDCPA is clear that collectors are forbidden from publicizing that a consumer owes any such debt and mailing envelopes are prohibited from including any information other than the name and address of the collection agency. 

In addition to the $1 million fine, the agreed upon settlement requires the agencies to cease all text messaging if it fails to contain the necessary disclosures as required under the law and to first receive consumers' express consent before sending a text message.  The collection agencies are also banned from falsely representing to consumers that they are a law firm capable of taking legal action in an effort to collect.   

If you are the victim of a violation of the Fair Debt Collection Practices Act or need additional information regarding the FDCPA contact SmithMarco P.C. for a free case review.

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Fri, 04 Oct 2013 10:32:38 GMThttp://www.protectingconsumerrights.com/blog/2013/10/4/collection-agency-using-text-messaging-to-collect-debts/
Are You Tired of Bill Collectors?http://www.protectingconsumerrights.com/blog/2013/10/4/are-you-tired-of-bill-collectors/As American consumers, you have rights.  The Fair Debt Collection Practices Act is a Federal law passed to protect debtors from harassing, abusive or unethical bill recovery efforts.   In other words, if you are being harassed in any way, you can sue the collector and recovery up to $1000 for violations.  One consumer in Nebraska decided to turn the tables on collectors and was happy with the results.  Read about him.

What are some violations? 

  • Failure to properly identify themselves.  The collectors must identify who they are and advise the consumer at each and every communication that the communication is coming from a debt collector.  In the first communication, the collector must also inform the consumer that any information obtained will be used for purposes of debt collection.
  • Calling at work after you tell the collector you can not receive calls at work.   You must tell them you can not accept calls at work.
  • Threatening to arrest you or file criminal charges.  You can not be arrested or charged with a crime for failing to pay a debt.  This is false, misleading and deceptive.
  • Calling your friends, family or work and discussing your debt.
  • 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
  • Using profanities or 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
  • Send false information to the credit bureaus.
  • Cause a telephone to ring an unreasonable amount of times.  You need to pick up these calls at some point and tell them to stop calling.  If they leave messages, save them.  Also, it is recommended to keep a log of the calls and/or take photos of the caller identification.

What if I do not have money to hire an attorney?

  • Call or contact our website for a free consultation. You will not have to pay any out of pocket costs to pursue your case.  The statute provides that if you win, then the defendant has to pay the attorneys' fees.  If you hire the right firm, they will waive the fees if you lose.  That is the way to help consumers. 
  • SmithMarco has been helping consumers since 2005.  Check out what other consumers say about this firm or contact us for a free consultation by calling or using our website

What can I do to stop these collectors?

  • Start keeping track of the calls.
  • Take photos of the caller identifications or screen shots.
  • Save all voicemail messages.
  • Save collection letters.
  • Call for a free consultation

Why should I take action?

Because you can!  You can stop the calls and stop the harassing.    Even if you can't resolve the debt, at least you can make steps toward making your life better.  Read about others


 

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Fri, 04 Oct 2013 10:53:12 GMThttp://www.protectingconsumerrights.com/blog/2013/10/4/are-you-tired-of-bill-collectors/
Credit Reporting and Purchasing a Vehiclehttp://www.protectingconsumerrights.com/blog/2013/10/4/credit-reporting-and-purchasing-a-vehicle/Buying a car is a big purchase.  Whether it is used or new, you want to get the best deal.  If you plan to finance the purchase and get the best price, you need to do a little homework.

Pull your credit report before you go into a dealership.  Why?

Make sure there are no problems with your credit report.  Check the report for errors.  If there are mistakes, you will need to dispute them directly with the credit bureau reporting it.  You can easily do this by sending them a letter.  Check out our website for a sample letter with detailed instructions or call an attorney today for a free consultation

Your credit scores are used by the auto industry to help determine whether you will make timely payments on your loan.  Ultimately, this will determine the interest rate you receive.  You should shop around on your own for an auto loan before you start looking for a vehicle.  When you find the car or truck you want to purchase, you can take the financing you have already lined up, or let the dealer make you a better offer.  This way you will be able to know that you got the best deal possible in terms of financing.

ALSO, be aware that car dealers make money when brokering a finance agreement with a lender.   The higher the finance charge, the more the dealer stands to make on the sale.  A dealer may use your bad credit against you in order to puff up the annual percentage rate of the loan.  Therefore, you have to check your credit report, and assure there is nothing on there that will give the dealer a reason to increase the rate of your loan.

If you are having issues with your credit and need assistance, contact SmithMarco P.C. for a free case review. 

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Fri, 04 Oct 2013 11:38:32 GMThttp://www.protectingconsumerrights.com/blog/2013/10/4/credit-reporting-and-purchasing-a-vehicle/
Telephone Consumer Protection Act Suits on the Risehttp://www.protectingconsumerrights.com/blog/2013/10/7/telephone-consumer-protection-act-suits-on-the-rise/Over the past several months, consumer attorneys nationwide have noticed a steady incline of Telephone Consumer Protection Act ("TCPA") being filed against collection agencies.  According to a survey taken over the past year, lawsuits filed under the TCPA have continued a steady increase rising by as much as 15% from August of 2012 and almost 65% for the entire year.  Moreover, the Federal Communications Commission ("FCC"), Federal Trade Commission ("FTC") and Better Business Bureau ("BBB") recently demonstrated increased interest in enforcing TCPA guidelines.

Since its inception, the TCPA was considered to be a statute enforced through small claims courts, however more recently, the statute has been used to assert class action claims against collection agencies violating the law.  The most common types of private claims brought under the statue are texting as a means of sending promotional campaigns, placing pre-recorded voice messaging calls in an effort to collect debt and fax advertising. 

In addition to private enforcement actions, the FCC and FTC have increased their enforcement of the TCPA.  With the rise in violations, Congress enabled the FCC to further regulate the TCPA.  Taking action to protect consumers, the FCC now requires that pre-recorded voice telemarketing and advertising calls have opt-out mechanisms and that business receive prior written consent from consumers for pre-recorded voice telemarketing or advertising calls to cellular and land line phones (this consent may be received by sending an initial text message or pre-recorded call).

Additionally, both the FCC and FTC have taken matters into their own hands regarding the increased number of complaints from consumers about TCPA violations.  In a recent summit, the FTC announced a hefty financial reward to the first developer of software that could block "robo-calls" to both cell phones and land lines. 
 
While the purpose of the TCPA was to restrict marketing calls and text messaging by prohibiting communication using automated systems, artificial callers, or pre-recorded voice messages without first receiving express consent, based on the increase in law suits, it appears businesses have no intention of slowing down as evidenced by the increase in lawsuits under the TCPA.

If you believe you have been the victim of violations of the TCPA contact SmithMarco, P.C. for a free case review.

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Mon, 07 Oct 2013 08:57:08 GMThttp://www.protectingconsumerrights.com/blog/2013/10/7/telephone-consumer-protection-act-suits-on-the-rise/
Four Essential Requirements to Comply with the FCRA when Conducting an Employee Background Checkhttp://www.protectingconsumerrights.com/blog/2013/10/7/four-essential-requirements-to-comply-with-the-fcra-when-conducting-an-employee-background-check/Since the Fair Credit Reporting Act ("FCRA") amended the requirements of conducting employment background checks in early 2013, compliance has never been more important.  Consumers need to be cautious that their potential or existing employers are not violating their rights under the statute and knowing their rights is the first step to protection.   

  1. Employers must submit written consent from the employee prior to requesting a copy of the employee's credit file.  As of January 2013, the FCRA requires that anytime an employer requests a copy of an employee's credit file for the purpose of a background check, the employer must provide proof of consent from the employee.  Such authorization must clearly show that the employee understands the information requested will be used for the purpose of making employment decisions. 
  2. Employers must disclose their intention to conduct a background check.
    The employee must be aware of the employer's intention to conduct a background check and the disclosure must include a statement regarding the type of background check to be conducted, what information will be gathered during the process and how the information will be utilized.  This document must be identical to the document presented to the credit reporting agency when requesting the employee's information.
  3. Employers must follow protocol prior to taking adverse action against an employee.
    Should the employer receive information contained in the report requiring them to take adverse action against the employee, prior to taking this action, the employee must be presented with a copy of the information received from the credit reporting agency along with a copy of "Summary of Your Rights Under the FCRA".
  4. Employers must follow protocol when taking adverse action against an employee
    If an employer takes adverse action against an employee, the employer must provide an "Adverse Action Letter".  This letter must include the name, address and telephone number of the credit reporting agency who provided the report; a statement declaring the credit reporting agency is not responsible for the adverse action taken against the employee and that it is not able to provide a reason for the adverse action; a statement that the employee has the right to obtain a copy of the same credit report by making a request within 60 days of the adverse action; and a statement that the employee has the right dispute any inaccurate information contained in the report directly with the credit reporting.

If you feel an employer has violated your rights under the FCRA, contact SmithMarco P.C. for a free case review.

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Mon, 07 Oct 2013 09:18:44 GMThttp://www.protectingconsumerrights.com/blog/2013/10/7/four-essential-requirements-to-comply-with-the-fcra-when-conducting-an-employee-background-check/
Protecting Yourself from Identity Thefthttp://www.protectingconsumerrights.com/blog/2013/10/9/protecting-yourself-from-identity-theft/Identity theft is one of the most devastating and fastest growing crimes in the United States today.   According to the Federal Trade Commission ("FTC"), it is estimated that as many as one out of five Americans fall prey to becoming a victim of identity theft each year.  Over the past decade, more than 35 million people worldwide have been victims of identity theft as criminals are using mail theft, credit card skimming, computer hacking, email and telephone scams to make it the fastest growing crime in America. 

The FTC has estimated that victims of identity theft lose on average more than $5,000, making it important to learn how to protect yourself from becoming another victim.  Taking the adequate steps to protect your identity won't guarantee your safety but should give you some peace of mind. 

Step 1:  Look after your mail. 
If you know you are not available to collect your mail because you will be out of town, have your mail put on hold until you return or opt for a locked mailbox. 

Step 2:  Ensure your trash is trashed. 
Make sure to shred all important paperwork including insurance information, credit card statements, bank statements and credit offers prior to throwing them in the garbage.  Going through a trash can on the street for information (known as "dumpster diving") is the easiest way for your identity to be stolen, so shredding paperwork will protect your identity.   

Step 3:  Opt out of pre-approved credit cards.
You can opt out of pre-approved credit card offers by calling 1-888-5-OPTOUT (1-888-567-8688).  It is only too simple for a criminal to complete a preapproved credit card application from your mailbox with your personal information and start charging in your name.  Opting out of these credit cards will protect you from this risk.    

Step 4:  Review your credit history on a regular basis. 
Under the Fair Credit Reporting Act ("FCRA") you are entitled to receive a free copy of your credit from each of the three major credit reporting agencies annually, order your copies to ensure the information reported is in fact accurate and belongs to you. 

Step 5:  Safeguard your Social Security Number. 
Do not carry your social security card with you and make sure it is in a safe place.  Most banks offer a safety deposit box free of charge to their customers and storing your social security card there is a great and responsible idea. 

Step 6:  Regularly change your passwords. 
While you do not want to have a password you cannot remember, make sure it not too obvious and try to change your passwords regularly.  Smart phone apps exist today that can be set up to remind you to change your passwords a few times a year to help protect your identity and confidential information. 

If you believe you have been the victim of identity theft and are interested in free case review, contact SmithMarco P.C.

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Wed, 09 Oct 2013 08:46:25 GMThttp://www.protectingconsumerrights.com/blog/2013/10/9/protecting-yourself-from-identity-theft/
Government Shut-Down Can Cause an Increase in Debt Collection Activityhttp://www.protectingconsumerrights.com/blog/2013/10/9/government-shut-down-can-cause-an-increase-in-debt-collection-activity/Perhaps the federal government in its current shut-down did not realize how much they were helping the debt collection industry.  It looks as though Congress may have given collectors a big boost.  Certainly, it was hardly a consideration when decisions were made to shut down the government, but it is beginning to appear that the current situation will have the effect of causing defaults on credit obligations, and a corresponding increase in collections. 
 
At this time, roughly 800,000 federal workers have been put on furlough - meaning their work and pay has been suspended.  Most of these government employees do not have such high paying jobs that they don't need to worry about getting paychecks for a period of time.  Inevitably, bills will be missed and loans will be defaulted.  Surely, these federal employees have credit card payments, home loans, rents, and student loans just like the rest of us. 
 
At SmithMarco, P.C. we offer a free review of your situation to discuss how to handle the predicament of having a loss of income due to the shut-down of the federal government.  Federal employees that are on furlough and are unable to make payments to their creditors because of lost income can expect their creditors to turn these debts over to debt collection agencies and attorneys to pursue these delinquencies.  If you are a federal employee cut off from your job and your income, you have rights with respect to how you can deal with mounting debt obligations and the companies that pursue them.  Contact us for a free consultation

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Wed, 09 Oct 2013 12:43:11 GMThttp://www.protectingconsumerrights.com/blog/2013/10/9/government-shut-down-can-cause-an-increase-in-debt-collection-activity/
Opting Out of Credit Card Offershttp://www.protectingconsumerrights.com/blog/2013/10/11/opting-out-of-credit-card-offers/Earlier this week I discussed ways you can protect yourself from becoming a victim of identity theft.  In my blog, I briefly mentioned opting out of pre-approved credit card offers to shield your identity.  This topic deserves more attention. 

While my suggestion of opting out of pre-approved credit card offers may sound like a no brainer, don't be fooled as it is no easy feat.  Not only are credit card companies in the business of extending you credit but they also make their money buying and selling your personal information so by opting out of their offers you are taking away a portion of their business.  Regardless, there are several ways to opt out of credit card offers.

Option 1:  Call
The credit card companies under the direction of the Federal Trade Commission and the major credit reporting agencies have set up a toll free telephone number for you to call and opt out of the pre-approved offers.  The number is 1-888-5-OPT-OUT.  Over the automated system you are asked to provide your social security number.  This may not appeal to you.

Option 2: Online
The credit reporting agencies including Equifax, Experian and Trans Union allow you to opt out online.  On the OptOutPrescreen website you can select not to include your social security number but it will take several weeks to take effect.

Option 3: In Writing
You can notify the credit reporting agencies in writing that you wish to opt out of pre-approved credit offers.  Visit each of the credit reporting agencies websites for their address (or our website) and send a letter certified mail letting each of the agencies know they must remove your information from their database. 

If you are having issues or need assistance with your credit report contact SmithMarco P.C. for a free case review.

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Fri, 11 Oct 2013 11:38:12 GMThttp://www.protectingconsumerrights.com/blog/2013/10/11/opting-out-of-credit-card-offers/
Appellate Court Upholds Consumer's Verdict Against Fordhttp://www.protectingconsumerrights.com/blog/2013/10/15/appellate-court-upholds-consumer's-verdict-against-ford/In August of 2008, Charles Keatts purchased a brand new Ford Explorer from Crain Ford in Little Rock, Arkansas.  The vehicle was a lemon.  Throughout the initial bumper-to-bumper warranty period, the vehicle was in the shop for multiple attempts to repair water leaks that seemed to drip from under the dash near the gas pedal.  Ford could not detect or repair the problem despite repeated attempts. 
 
Mr. Keats hired SmithMarco, P.C. to pursue his lemon law claims in court.  The matter went to trial and after nearly a week of testimony, it only took the jury about an hour to find for Mr. Keats, and award him the entire purchase price of the vehicle - over $30,000.  Ford appealed. 
  
Ford claimed that Mr. Keats was supposed to take his claims to the Better Business Bureau before he filed his lawsuit in court.  Ford had an informal dispute resolution procedure (IDSP) that was part of the warranty booklet that required all consumers to put their claims to the BBB first.  However, the IDSP that Ford included did not provide for all the same remedies that Keatts could have obtained in a court of law.  A vehicle manufacturer cannot force a consumer into a dispute forum that does not provide all the same remedies that the lemon law itself allows.  Ford's IDSP provided that if Keatts were to prevail, he would be entitled to a comparable vehicle but it did not have to be a vehicle that Keatts necessarily approved.  The vehicle need only be "reasonably equivalent" to the replaced vehicle.  Thus, Ford could put Keatts in a "take-it-or-leave-it position - with perhaps a vehicle of a different color, with different add-ons, tires, rims, interior, etc.  
 
The appellate court found in Mr. Keatts favor and affirmed the trial court's position.  Ford's IDSP did not comply with the lemon law, and did not provide the consumer all the remedies that the Arkansas lemon law provided.  Mr. Keatts verdict has been upheld.  SmithMarco is a consumer rights firm that handles lemon law claims among the various other consumer protection areas.  If your new vehicle is not functioning properly, and you are forced to endure multiple repair attempts, contact us and we will provide a free case review

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Tue, 15 Oct 2013 08:35:34 GMThttp://www.protectingconsumerrights.com/blog/2013/10/15/appellate-court-upholds-consumer's-verdict-against-ford/
Illinois Tightens Laws on Autodialers and Robo-Callshttp://www.protectingconsumerrights.com/blog/2013/10/23/illinois-tightens-laws-on-autodialers-and-robo-calls/Under the Telephone Consumer Protection Act ("TCPA") the Federal Communications Commission ("FCC") issues rules and regulations allowing consumers to file suit and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls, autodialed calls, robo-calls or SMS text messages. 

"Telemarketing" calls are calls received by a consumer made by advertisers offering products or services to consumers.  Autodialed calls are phone calls made with an actual person or pre-recorded message that is placed using an "autodialer" or automatic telephone dialing system.  This system produces and stores telephone numbers using a random number generator.  A robo-call is a phone call that uses an "autodialer" system to deliver a pre-recorded telemarketing message.  Also included under the umbrella of the TCPA are SMS text messages sent to cell phones if they are submitted for marketing or collection purposes. 

Illinois, among numerous other states, now requires express consent from a consumer prior to engaging in telemarketing calls or text messages.  While exceptions such as calls manually dialed that do not contain a pre-recorded message do exist, an established business relationship will no longer relieve an advertiser or collector from this express consent requirement. 

Compliance with the new amendment to the TCPA may be satisfied by electronic and digital forms of a signature including consent from a consumer by email, a website form, text message, telephone key press or voice recording.  This consent however must be unambiguous, meaning the consumer must be clear and certain that he or she has agreed to receive calls or texts by autodialer or pre-recorded messages and the consumer must designate the phone number at which the communication may be placed.     

In the past, companies could rely on an established business relationship to avoid the express consent requirement however under the new amendment, such a relationship is no longer sufficient.  Failure to comply with the TCPA allows a consumer to recover either actual damages or statutory damages ranging from $500.00 to $1,500.00 per violation. 

If you believe you are involved in a violation of the TCPA and need legal advice, contact SmithMarco P.C. for a free case review.

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Wed, 23 Oct 2013 09:02:07 GMThttp://www.protectingconsumerrights.com/blog/2013/10/23/illinois-tightens-laws-on-autodialers-and-robo-calls/
Know Who Is Calling To Collect Your Debthttp://www.protectingconsumerrights.com/blog/2013/10/23/know-who-is-calling-to-collect-your-debt/For many of us, when a debt collector begins calling to collect on a debt it usually is no surprise.  Most consumers are aware of their finances and their inability to make payments.  When the collection calls begin it most often means your debt has not been paid in quite some time and a collector has every intention of forcing you to make payment.  The collector is savvy, and has a lot of tools at his or her disposal to coerce you to make a payment, whether you are ready and able, or not. Knowing your rights under the Fair Debt Collection Practices Act ("FDCPA") will protect you from being taken advantage of.   

When communicating with collectors, it is important to understand what type of collector is contacting you so you can respond accordingly.  There are three different types of collectors: collection departments of the creditor, third party or contracted debt collectors and debt buyers.  A clear understanding of who you are communicating with will allow you to gain the upper hand during debt negotiation and ensure you are not being taken advantage of.

Type 1:  Collection Departments
When first contacted by a debt collector the initial communication often comes from an agent from a collection department.  For example, if you default on a store credit card, the collection department from the credit card company or the store will contact you in an effort to receive payment.  This type of collector will usually treat you like a client as they want to work out payment, while still holding on to your business.  Collectors who work in house for a store or credit card company are usually less forceful and more likely to negotiate a payment plan.   That is, until the account is "charged off".  While most creditors will not still be collecting their own debts at the time the account is charged off, some still will on occasion.  The trouble is that the FDCPA does not apply to the original creditors, and therefore, this caller will get away with some of the harassment and abuses that debt collection agencies will not. 

Type 2:  Third Party or Contracted Debt Collectors
After payment is not received and the creditor charges off the debt, companies often hire an outside collection agency to do their dirty work.  In this situation, the original creditor holds onto ownership of the debt and hires a collection agency to go after you for payment.  This type of collector is contracted for their work and most often only get paid a percentage of what they collect if they are successful.  These collectors are more aggressive.  However, the FDCPA does apply to them in every way, and as they tend to be more aggressive, they are more likely to violate the law under the FDCPA because they only get paid when you pay. 

Type 3:  Debt Buyers
Debt buyers most often purchase old debt for pennies on the dollar that are considered uncollectable because they are either passed the statute of limitations or a previous collector's efforts were unsuccessful.  If you know that your debt is passed the statute of limitations and you can no longer be sued for payment, make sure this type of collector does not trick you into making a payment.  Making a payment, even a small one, can revive or bring the debt back to life when you would otherwise not have been responsible.    While debt buyers themselves are often also collectors, many debt buyers will hire out yet another collection agency to perform the collection work.  Thus, to truly understand who is the owner and who is the collector, read the letters that they send you thoroughly.  They will disclose who the current creditor is.  If it is a different company from whom you originally had credit with, you know that the debt was bought.  If that current creditor is a different company than who is contacting you, you know the debt was bought and then assigned. 

If you are being contacted by a debt collector and feel your rights may have been violated under the FDCPA, contact SmithMarco P.C. for a free case review.

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Wed, 23 Oct 2013 09:42:23 GMThttp://www.protectingconsumerrights.com/blog/2013/10/23/know-who-is-calling-to-collect-your-debt/
Beware of New Trend in Debt Collection Scamshttp://www.protectingconsumerrights.com/blog/2013/10/28/beware-of-new-trend-in-debt-collection-scams/There is an alarming new trend in debt collection scams.   Watch out for fake collection companies that are calling on legitimate debts.  These callers have information about debts that you owe, but have no authority to collect them.  Exactly how this information is obtained is unknown.  What you need to watch out for our bogus companies collecting on debts you owe but have no permission to collect.  They are scammers. 

The caller typically does not identify the name of the company, they refuse to provide you with their address, their phone number is not traceable, they have a general company name with no website or BBB listing and  they refuse to speak to attorneys calling on behalf of their clients. 

What do you mean?
Fake companies are trying to collect legitimate debts that have been defaulted.   We see this daily for payday loans, but never for credit cards  This is new.  In the last week, we have received calls about worried consumers who are being threatened with arrest or fraud charges unless they made a payment for their charged off credit card, usually Credit One, immediately.

How will I know what to look for?
A collector must make meaningful disclosure of their identity.  They cannot hide who they are.   If you ask for their address, they will readily give it to you.  If the company is on the defensive and seems like they are hiding information, they probably are not a real company.  If you do obtain an address from them, go check the address out on Google Maps.  If the address leads to a strip mall where there is a UPS Store or another Mailbox drop store, then chances are you are dealing with a phony company. 

Can I be arrested for failing to pay a debt or charged with fraud?
You can not be arrested for failing to pay a debt nor can you be charged with fraud.  The callers are trying to scare you into paying them immediately.  They don't want to give you a moment otherwise you will realize that they full of hot air.

What should I do to protect myself?

  • Never make a payment over the phone or provide personal information to a caller.
  • Demand they send you a bill or something in writing on their letterhead.  
  • If they are being difficult and overwhelming, get their company name and address. Look up the company, check out their website, and their listing under the Better Business Bureau.  You can also contact our office for a free consultation.  We can check them out for you - at no cost.
  • Call the original creditor and ask about your account.  They will be able to tell you if they still own it and if not, who they sold it to or who is collecting on it.
  • Pull you credit report and check to see how debt is being reported your credit history.  You can obtain your report from each of the three credit bureaus, Trans Union, Experian and Equifax for free every 12 months by contacting them directly or ordering all three through annual credit report

Accessing personal and financial information without permission has become a real threat.  Protect yourself from identity theft by asking the right questions and contacting an attorney for a free consultation.  SmithMarco, P.C. has been protecting consumer rights since 2005.  Check out our website or call an attorney today for a free review.

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Mon, 28 Oct 2013 13:01:31 GMThttp://www.protectingconsumerrights.com/blog/2013/10/28/beware-of-new-trend-in-debt-collection-scams/
Understanding Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2013/10/30/understanding-your-credit-report/Fortunately, the majority of consumers have a clear understanding of the importance their credit has over their financial well-being.  As a consumer your knowledge of your credit report and its accuracy can mean the difference between you being approved credit at favorable interest rates or not.  The accuracy of the information contained in your report by creditors, banks, and other institutions is important because so many parties rely on the information in determining whether or not to maintain or extend you credit.

Good credit makes life easier, allowing you to qualify for loans, mortgages and insurance coverage at the lowest interest rates and can also make finding employment easier.  With the serious role your credit plays in your life as a consumer, it is important to understand how to read your credit report to ensure the accuracy of the information reported.  While most consumers would like to place blame on the companies reporting inaccurately, the reality is only you are responsible for regularly reviewing your report to ensure its accuracy.  Essentially, you need to take an active role in reviewing your report regularly to make sure no errors exist affecting your opportunity to obtain credit.   

To better understand your credit report, you need to understand where the information originates, how errors happen and how you can correct these errors.  Your credit report is a compilation of information all about you.  This information includes everything from your finances (how you pay your bills), employment history (past and present), rental and mortgage information and personal information including your social security number, phone number and address.    

The information is collected by the credit reporting agencies from the credit card companies, banks, mortgage companies, landlords and employers.  This information is then sold and used as a measure of your creditworthiness.  Imagining for a moment the enormity of information passed back and forth, errors are more than likely to occur.  Errors can also occur as a result of identity theft.  Regardless of how the errors occurred, it is your responsibility to discover them and work toward correcting them before they case you harm.          

Under the Fair Credit Reporting Act ("FCRA"), you are entitled to one free copy of your credit report annually.  You may retrieve a free copy of your credit report at annualcreditreport.  After you receive a copy of your report, review it for accuracy.  Review your personal information, your employment information and your accounts.  Make sure your payment history is accurate and your balances are up to date.  Make sure the accounts reporting in fact belong to you and not to another consumer.   

If you find information that is inaccurate, you must take steps to correct the information.  Under the FCRA, you can dispute any inaccurate information directly with the credit reporting agencies.  A written letter detailing the inaccurate information is the most thorough means of disputing and will provide you with the best results, however the credit reporting agencies do have online disputing pages for faster results. 

If you are having problems with your credit report or need assistance in understanding the information reporting about you contact SmithMarco P.C. for a free case review.

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Wed, 30 Oct 2013 07:09:15 GMThttp://www.protectingconsumerrights.com/blog/2013/10/30/understanding-your-credit-report/
Getting Sued by a Collector - Making a Settlementhttp://www.protectingconsumerrights.com/blog/2012/10/15/getting-sued-by-a-collector-making-a-settlement/When a debt collector sues a consumer, the consumer has to answer that lawsuit by following the instructions on the Summons that is served. But here are some pitfalls and pointers:

  1. Make sure the case is handled.  It is one thing to settle the debt, but there is still a lawsuit out there with your name on it.  What is going to happen to it now that you struck a deal?  The collector may still want to have a judgment entered in case a payment is missed on a payment agreement.  That would allow them to immediately garnish wages or take assets without having to go back to court. It is best to argue for a dismissal of the case.  A dismissal "with prejudice" means the case is dismissed forever, and there is no right to bring the matter back to court.  A dismissal "without prejudice" means that the case can be brought back for reasons such as non-payment.  If a payment agreement is being made, it is highly unlikely a collector will agree to dismiss a case with prejudice.  Dismissing a case without prejudice is a happy medium that allows the collector the right to go back to court if you don't pay, but gives you peace of mind knowing that the case is currently dismissed and will stay that way as long as the debt is being paid.  Either way, you cannot ignore the lawsuit.
  2. Get any agreement in writing.  These collectors handle dozens of lawsuits a day.  It is not surprising if something slips through the cracks.  Whatever deal is worked out, get it in writing from them.  Most importantly, get how they will handle the court case in writing.  If the case will be dismissed, make sure that it says so on the document they give you. 
  3. Follow up on that case.   Despite what they promise you and give you in writing, follow up to make sure they did what they promised with the court case.  Get a copy of the dismissal order if the case is being dismissed.  If a conditional judgment is entered, get a copy of it.  Don't rely on their comments to "trust" them - that "everything is all fine".  All too often we have seen consumers think they worked out a deal for their case, but later found themselves having to face a wage garnishment.

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.

 

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Mon, 15 Oct 2012 15:06:02 GMThttp://www.protectingconsumerrights.com/blog/2012/10/15/getting-sued-by-a-collector-making-a-settlement/
Can a Credit Card Company Take My Paycheck?http://www.protectingconsumerrights.com/blog/2013/12/16/can-a-credit-card-company-take-my-paycheck/When applying for a credit card, you sign a contract agreeing to make monthly payments on your purchases, either in entirety or at an agreed upon minimum amount.  By signing the contract, you agree to make payments in full or be charged interest for paying less than the balance or for failing to make payment at all.  Furthermore, by failing to make any payment, you agree that the credit card company can charge you late fees or finance charges on top of the interest.  Seem a little one sided?  This agreement is a legal and enforceable contract and if you breach the contract, by failing to make payment, the credit card company has the right to sue you and garnish your wages for the dollar amount owed, which often well outweighs your initial balance, by thousands of dollars.

Unlike most debt, when you stop paying on your credit card the amount builds quickly as interest rates soar.  By signing a credit card agreement, you are likely responsible for excessive late fees and penalties that get added to the original balance that you owed and that amount will continue to grow each month that you continue to default on your payment.  It is important to understand that while a credit card company can garnish your wages, it cannot do so without suing you in a court of law and obtaining a judgment against you.

In order to garnish your wages, the credit card company or collection agency must first file a lawsuit and serve you with notice of the suit.  Legally, to obtain a judgment against a debtor, the creditor or collection agency must serve you with notice of the lawsuit and provide you with an opportunity to defend yourself in court.  If you don't defend yourself, or you don't defend yourself properly, the credit card company can then obtain a judgment against you and lastly, provide your employer with a copy of the garnishment order.  There are options for debtors who fear garnishment and wish to protect their wages from the credit card companies.

The first option you can take to protect your paycheck is to try to settle the debt.  Even if the garnishment was initiated by a collection agency, contact the original creditor, the credit card company, and try to work out a payment plan.  Settlement negotiations will save you the expense of legal fees and may allow you to pay a monthly amount that is more affordable.  Garnishment is a set percentage of your salary and will likely be more than you can afford or you probably would have paid the bill initially.    

A second option to avoid garnishment in the event the credit card company has already obtained a judgment is to review your state law.  Some states have exemptions or laws in place that will protect a portion of your wages.  When your employer provides you with the notice of garnishment, check your state's laws to make sure the correct dollar amount is being withheld from your paycheck.  If you feel the amount is in error based on your findings, you can file a notice with the court claiming the exemption and request the amount be altered.      

The last option to avoid garnishment is to file for Bankruptcy, which will immediately stop the order.  Filing for Bankruptcy is a serious financial decision and you should consult a licensed attorney in your state before making taking this course of action.  While filing for bankruptcy will stop the garnishment, this should not be your only reason for filing.

If you have an order of garnishment and would like to discuss your options with an attorney, contact SmithMarco P.C. for a free case review.

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Mon, 16 Dec 2013 08:21:58 GMThttp://www.protectingconsumerrights.com/blog/2013/12/16/can-a-credit-card-company-take-my-paycheck/
Failure to Serve Debtors Violate the FDCPAhttp://www.protectingconsumerrights.com/blog/2013/12/18/failure-to-serve-debtors-violate-the-fdcpa/In a claim filed jointly by the Consumer Financial Protection Bureau ("CFPB") and the Federal Trade Commission ("FTC") both agencies agreed that collection firm, Mel Harris & Associates, LLC et al ("Harris"), violated the Fair Debt Collection Practices Act ("FDCPA") when it allegedly intentionally failed to properly serve collection lawsuits on defendants by providing them with notice that they were being sued. 

In Monique Sykes et al., vs. Mel Harris & Associates, LLC et al., the collection law firm, Harris, acting on behalf of a debt buyer, hired a process server that allegedly purposely failed to properly serve defendant debtors with court documents.  As a result of the improper service, when the debtors failed to appear in court, Harris and the debt buyer obtained default judgments against the debtors allowing them to garnish the debtors' wages and or property and to freeze the debtors' bank accounts in an effort to reach a settlement. 

During the investigation, collection agents working for Harris stated under oath that the process had been properly served upon the debtors.  However as the investigation continues, officials are discovering that this was not the case and furthermore, because of alleged collusion between Harris and the debt buyer, there are potential Racketeer Influenced and Corrupt Organization Act ("RICO") violations that have arisen.   
 
In its response to the case now before the Second Circuit Court of Appeals on violations of the FDCPA, both the CFPB and the FTC state that the Defendants should be formally charged with violations of the FDCPA for its conduct. 

If you are involved in a collection lawsuit and believe you have failed to receive proper notice of the suit, you may be a victim of a violation of the FDCPA and you have rights.  Contact SmithMarco P.C. to discuss your situation in great detail with a licensed attorney for a free case review

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Wed, 18 Dec 2013 08:18:37 GMThttp://www.protectingconsumerrights.com/blog/2013/12/18/failure-to-serve-debtors-violate-the-fdcpa/
Employment Background Screenings & Disneyhttp://www.protectingconsumerrights.com/blog/2013/12/20/employment-background-screenings-disney/In the recent class action suit, Culberson v. The Walt Disney Company, Robert L. Culberson, ("Culberson") filed suit against the defendant alleging it knowingly violating the Fair Credit Reporting Act ("FCRA").  The complaint states that The Walt Disney Company, ("Disney") accessed Culberson's credit file during the job application process and failed to comply with the FCRA after it took adverse action against Culberson.  Under the law, after making the decision not to hire Culberson based on the information contained in his credit file, Disney had an obligation to provide Culberson with an adverse action letter, a copy of his credit report that was used during the application process and a copy of his rights under the statute.     

The premise of the law is that every consumer/job applicant should be entitled to an opportunity to respond to adverse action that may be taken against them based on information reported in their credit file; perhaps the information used to deny the applicant is inaccurate, outdated, expunged, or just does not belong to the consumer in the first place.  The purpose of the employment background check laws are to protect consumers from being denied a job opportunity because of inaccurate reporting.  

In this case, Culberson applied for a job with Disney and during the employment background check, his report showed a criminal conviction from an assault and battery charge dating back to 1998, when the consumer was just 19 years old.  The conviction had been expunged from his record in 2010 but was still reporting on his credit file.  Because Disney failed to notify Culberson that it was accessing his credit file during the application process, Culberson had no opportunity to see his report prior to the access and correct the inaccuracy.  Furthermore after the information was removed, Disney still refused to reevaluate his application.

When signing a contract with the background check agency, Disney agreed to take care of the adverse action reporting and all requirements under the FCRA.  Despite this agreement with the agency, Disney's conduct was in complete disregard for the letter of the law.  It failed to provide a pre-adverse action notice to Culberson nor did it send him written notice of the adverse action.  Employers need to understand the reason for this policy and comply with the law if they want to avoid FCRA suits.

If your rights have been violated under the FCRA during an employment background check and you would like to discuss your situation in greater detail, contact SmithMarco P.C. for a free case review.        

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Fri, 20 Dec 2013 10:00:00 GMThttp://www.protectingconsumerrights.com/blog/2013/12/20/employment-background-screenings-disney/
Credit Access and Inclusion Acthttp://www.protectingconsumerrights.com/blog/2014/1/9/credit-access-and-inclusion-act/For consumers with an invisible credit history, help may be on the way.  Presently, before Congress is the Credit Access and Inclusion Act, a proposed amendment to modify the Fair Credit Reporting Act ("FCRA") to include additional positive information to consumer reports, like utility bills and rental payments. 

If you are one of millions of American consumers who do not have a credit card or a mortgage loan you understand how difficult it is to build your credit and getting credit when you have no credit is next to impossible.  This double edged sword is precisely the reason why Congress is considering this proposed bill, so that credit-less consumers can show they are worthy of borrowing money.

The Act is fairly straight forward.  Because not all consumers carry a credit card or own a home, their credit is virtually non-existent.  By reporting a consumers utility bills, like electricity, telephone, internet and cable service or rental payments, previously invisible consumers can begin building a credit history and be considered credit worthy by banks and financial institutions instead of a credit risk.  As it stands, utility bills and rental payments are only currently reported if a consumer is late on payments or if the consumer fails to make rental payments at all.  Why should consumers be punished for poor repayment habits and not rewarded for stellar ones?

Allowing this bill to pass would provide groups like minorities, college-age consumers and low-income consumers the opportunity to enter into the financial world and be eligible for better loans opportunities.  The assumption is that if you do not have a credit history you are considered high risk and no one wants to approve you for a loan or will only approve you at unreasonably high interest rate.  Because consumers with minimal credit history cannot get a loan they turn to payday loans and end up destroying their chance at good credit.   

Those in opposition of this bill argue that including utilities on consumer reports will just open the door to more inaccuracy.  As it stands consumers reports are full of errors and those in opposition argue the additional information will end up harming consumer reports and create more of a burden on consumers to dispute the inaccuracies. 

If you wish to discuss your credit report with a licensed attorney or receive more information on the Credit Access and Inclusion Act contact SmithMarco P.C. for a free case review.

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Thu, 09 Jan 2014 09:30:05 GMThttp://www.protectingconsumerrights.com/blog/2014/1/9/credit-access-and-inclusion-act/
Credit Card Mistakeshttp://www.protectingconsumerrights.com/blog/2014/1/9/credit-card-mistakes/Owning a credit card can be an important aspect of your financial worthiness.  It can put you on the map to building your credit history and open doors to obtaining credit opportunities.  However, it takes a responsible consumer to use a credit card conscientiously.  During the holiday season credit card offers may pop up in your mail box on a daily basis. Don't be tempted by the offers without first following the dos and don'ts of owning or using a credit card.  If you are looking to clean up your credit report and finances in 2014, follow these easy steps to owning a credit card. 

Rule Number 1:  Do not have too many credit cards
Having too many credit cards can wreak havoc on your credit score.  Too many credit cards create temptation for some consumers.  Some consumers don't know how to stop charging and more than a few credit cards allows you to continue charging on different cards when you have reached your credit limit.  

Rule Number 2:  Understand the offer and introductory rates
Often times, consumers are tempted by balance transfers and feel relieved to transfer their existing balance to a non-interest bearing account.  Understand that credit card companies are in the business of making money and an offer that sounds too good to be true usually is just that.  Make sure to read the fine print before transferring your balance.  Credit card companies offer low or no interest as an incentive, but this offer can expire after a short period of time and then the interest will sky rocket to more than you were initially paying.   

Rule Number 3:  Choose a card that best suits your needs
Don't be tempted to choose a card for the wrong reasons, such as rebates or reward programs….perhaps you need to travel and a card sounds appealing because it offers you free miles.  Choosing a card for the wrong reasons can cause you financial distress.  Make sure everything the card has to offer is right for you, not just the perks.  Make sure the card offers the best rates and terms available to you.

Rule Number 4:  Make more than your minimum payment
Failing to only make your minimum payment every month will get you into hot water.  Paying the minimum amount will amass additional fees and interest payments that will allow your credit card bill to skyrocket beyond what you can afford to pay.  Minimum payments often allow your credit card bill to end up at your limit and will destroy your credit.      

Rule Number 5:  Do not make late payments on your bill
Making late payments on your credit card bill is almost as bad as not making a payment at all.  Failing to make a payment will mean additional late payment penalties and a mark on your credit report.  Credit card companies often punish failure to pay by charging late-payment penalties that can cost more than your minimum monthly payment.  To make it easier to pay on time, set up a reminder on your computer or phone to pay you bill or try setting up computer payments so all you have to do is transfer the money on line to avoid the hassle of mailing a check. 

Rule Number 6:  Do not exceed your credit limit
Exceeding your credit limit will destroy your credit score.  If you are getting close to your limit and feel you cannot pay off your balance in full every month, try spending cash on necessities or contact your credit card company to try to increase your credit limit, not to allow you spend more, but to protect your score

If you are having trouble with your finances and wish to speak with a licensed attorney for a free case review, contact SmithMarco P.C.

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Thu, 09 Jan 2014 09:55:49 GMThttp://www.protectingconsumerrights.com/blog/2014/1/9/credit-card-mistakes/
Target Stores Security Breachhttp://www.protectingconsumerrights.com/blog/2014/1/9/target-stores-security-breach/If you are one of millions of American consumers who shop at Target, you have heard about the unauthorized access that took place over the past couple of weeks at Target stores.  Specifically what happened is that access was obtained to payment card data, used in the stores opening up Target customers to fraud and the potential to become victims of identity theft.  Target Corporation says that up to 40 million credit cards and debit cards of shoppers who visited the stores during the last week of November and first two weeks of December are at risk. 

For Target, this security breach could not have come at a worse time.  The shopping that occurs between Thanksgiving and Christmas is the store's busiest time of the year and may deter consumers from shopping at the giant retailer in the future.  In response to the security breach, Target sent out a notice to its customers giving all the facts of the unauthorized access.   Target assured its customers that while it understands misuse of credit card information is stressful, consumers will not be responsible for fraudulent charges and Target will offer free credit monitoring services for any consumers impacted by the security breach.  Target determined that the information involved in the incident included customer names, credit or debit card numbers, and the card expiration dates and CVV numbers or security codes on the back of cards. 

If you believe you are at risk, you should remain watchful for fraud and identity theft by regularly reviewing your credit report and monthly credit card statements.  You can sign up to review your account activity on line so that you can verify that all charges made on your account belong to you and are not the result of fraud.  If you discover you have been the victim of fraudulent activity you should report the fraud to your bank, local police department and the FTC.  Additionally, you must contact all three credit reporting agencies, Equifax, Experian and Trans Union and notify them you have been the victim of identity theft and request a fraud alert be placed on your credit file.  The fraud alert requires any credit grantor to contact you prior to extending credit in your name.

If you believe you may be the victim of identity theft as a result of unauthorized access while shopping at Target and need additional information contact SmithMarco P.C. for a free case review.

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Thu, 09 Jan 2014 10:18:27 GMThttp://www.protectingconsumerrights.com/blog/2014/1/9/target-stores-security-breach/
Five Facts of Identity Thefthttp://www.protectingconsumerrights.com/blog/2014/1/9/five-facts-of-identity-theft/In the wake of the ongoing crisis facing Target stores, now more than ever consumers need to be aware of the basic facts of Identity Theft.  Despite the fact identity theft is often discussed, misconceptions about this rapidly growing crime are everywhere.  Protecting yourself can be as simple as understand the basic facts.     

While identity theft was initially a crime where your credit card was stolen and used to make purchases until you discovered it was missing or until the card reached its limit, today the damage is much more extensive.  All an identity thief needs is a single piece of your personal information, like a credit card number, social security number or account number and he or she can begin opening accounts and taking out loans in your name.  Below is a list of facts that may help you avoid becoming the next victim.     

Fact 1:  You do not need to provide your credit card number for your identity to be stolen
Identities can be stolen simply by gaining access to your personal information.  Make sure important documents, such as birth certificates, social security cards, passports, and other financial documents are kept in a safe place.  The information contained in these documents can be used to steal your identity and open accounts in your name. 

Fact 2:  Providing non-financial information can often be enough to steal your identity
While it may seem harmless, providing your complete date of birth, address or phone number can often open you up to becoming a victim.  Make sure when sharing any personal information it is incomplete, for example just the month and year of your birthday or the last four digits of your social security number.

Fact 3:  Your mailbox can open you up to identity theft
Watch your mailbox.  Suburbanites are at risk of becoming victims of identity theft by mail.  Thieves can easily lift mail from your box, including credit card statements, bank statements or bills that contain all of your personal information making it easy to open up accounts in your name.  If you are awaiting checks make sure you know when they are expected to arrive so that the important documents don't sit in your mailbox.   

Fact 4:  Review your finances regularly
Make sure to review your accounts on a regular basis to ensure all charges belong to you.  Thieves often begin stealing your identity by first charging small amounts to see if they are successful. 

Fact 5:  If you are skeptical of an ATM machine do not use it
Follow your instincts.  If you feel uneasy about using an ATM machine, you should not use it.  If a machine looks or seems strange chances are it may be the result of fraudulent activity.  If you use a machine and feel that you may have been the victim of fraud, notify the bank immediately so they can watch your account and issue you a new card. 
    
If you believe you have been the victim of identity theft and need more information contact SmithMarco P.C. for a completely free case review.

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Thu, 09 Jan 2014 10:42:24 GMThttp://www.protectingconsumerrights.com/blog/2014/1/9/five-facts-of-identity-theft/
Who Can and Cannot See Your Credit Reporthttp://www.protectingconsumerrights.com/blog/2014/1/15/who-can-and-cannot-see-your-credit-report/Your credit report, a summary of your financial history, is an important document that can help determine whether or not you receive a credit card, mortgage or automobile loan, and what interest rate you will pay for your loans.  Your credit report can even determine whether or not you can rent an apartment or whether you get hired for a job. 

The Fair Credit Reporting Act ("FCRA") specifies who can access your credit report and who cannot.  The FCRA states that a company must have a legitimate purpose to view your report and any organization or individual who obtains a copy of your credit report without permission or under false pretenses can be fined under the FCRA. 

Who Can See Your Report

Lenders
If you are applying for credit or already have credit, the lender has permission to view your report.  A lender may review both your credit score and report during the application process and periodically while you maintain credit. 

Insurance Companies
Most auto insurance and some homeowner insurance companies will review your credit report prior to extending you insurance.  Some insurance companies will request your score to help determine what type of premium you will pay for the insurance.

Collection Agencies
If you owe money to a collection agency because you failed to make payment on your debts, a collection agency may view your credit report and score.  Collectors will use your report to determine whether or not to begin collection efforts.  Collectors often pull reports prior to a debtor knowing the collection agency was trying to collect a debt. 

Landlords
Most landlords will check your credit before renting you an apartment or home.  Depending on what service the landlord or realty company uses for a credit check, the landlord may or may not receive your credit score along with a copy of your report. 

Cellular Phone and Utility Companies
When submitting an application for a cellphone or utility service, your credit report and score may be used to evaluate your request and may result in an outright denial or require you to provide a deposit prior to receiving service.  After you receive service, your report and score may be reviewed on a regular basis to monitor your account.   

Who Cannot See Your Report

Employers, Potential or Existing
Your employer or a potential employer cannot review your report without your written consent.  

Spouse or Ex-Spouse
Your spouse or ex-spouse cannot review your report. 

Any Potential Creditor with Whom You Have Not Applied for Credit
If you have not applied for credit with a company, they cannot access your credit file.   A potential creditor can pull your report for promotional purposes to determine if they should send you an offer of credit but they cannot see what is included in your report. 

If you are having trouble with your credit report or need additional information, please contact SmithMarco P.C. for a free case review.

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Wed, 15 Jan 2014 10:35:50 GMThttp://www.protectingconsumerrights.com/blog/2014/1/15/who-can-and-cannot-see-your-credit-report/
Should Credit Scores be a Part of the Decision to Hirehttp://www.protectingconsumerrights.com/blog/2014/1/21/should-credit-scores-be-a-part-of-the-decision-to-hire/In a recent post I discussed myths relating to your credit score and touched upon the much heated topic of whether or not employers should be able to review your credit score or even your report.  Currently, existing or potential employers are allowed to access your credit file with your express written consent.   However, the credit report an employer receives is a scaled down version and is not to include your credit score. 

As it stands many job applicants argue that the information on your report should not be accessible to employers and should not stand in the way of whether or not you are hired for a job.  Imagine for a moment that you have been out of work and unable to pay your bills.  You finally land an interview and are great in the meet and greet but feel doom when the employer asks to access your credit file.  Your report is riddled with late payments and collection accounts for bills you were unable to pay during your period of unemployment and a as a result you know you will not be hired….. a vicious cycle, hard to pay your bills when you are unemployed and hard to get a job when you are judged for not paying your bills.  On the contrary, proponents of employment background checks argue that information contained in your credit report is necessary for many jobs, including government positions, positions in the world of finance, child care, etc.  Your credit report may include necessary information about you that you were not willing to share during the interview process.
         
Currently, before Congress is a bill titled the "Equal Employment for All Act" tackling this issue head on for consumers nationwide.  This bill proposes to change the Fair Credit Reporting Act ("FCRA") to prohibit employers from checking your credit in relation to a job application or during continued employment.  Refusing to allow employers to check an applicant's credit history will prevent employers from discriminating against existing or potential employees with a less than stellar report.  Proponents of the bill argue that eliminating an employer's right to review an applicant's credit history levels the playing field and allows an employee to earn the job based on his or her merit and not on his or her credit history.  There is no existing proof that a consumer's credit history or credit score has any direct correlation to his or her ability to successfully perform during employment opportunities. 

If you would like more information regarding the "Equal Employment for All Act" or would like to discuss your report with a licensed attorney contact SmithMarco P.C. for a free case review.

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Tue, 21 Jan 2014 12:00:21 GMThttp://www.protectingconsumerrights.com/blog/2014/1/21/should-credit-scores-be-a-part-of-the-decision-to-hire/
TeleCheck Fined $3.5 Million for Violations of the FCRAhttp://www.protectingconsumerrights.com/blog/2014/1/29/telecheck-fined-$35-million-for-violations-of-the-fcra/In a recent investigation into the regularly gripped about check authorization companies, the Federal Trade Commission ("FTC") launched an investigation into the consumer practices of TeleCheck and found that its conduct was in violation of the Fair Credit Reporting Act ("FCRA").  In response to the investigation, TeleCheck agreed to settle the dispute by paying $3.5 million and to alter its behavior to comply with the consumer protection laws. 

TeleCheck, a Texas based company, is a consumer reporting agency ("CRA"), like Equifax, Experian and Trans Union, that gathers consumer information and uses it to assist retail merchants nationwide in determining whether to accept consumer checks.  Under the FCRA, a consumer whose check is denied by a merchant based on information provided by TeleCheck or any other check clearing company, has the right to know the information reported and has the right to dispute any information with TeleCheck and have any allegedly inaccurate information investigated.  Based on the investigation conducted by the FTC, consumers have not been afforded this right by TeleCheck.  Consumer complaints include being told their checks have been declined and not advised of their right to dispute but instead told there is nothing they can do about it.    

In its formal complaint the FTC alleged that TeleCheck failed to follow proper dispute procedures by notifying consumers of their right to dispute and by refusing to dispute when requested.  Furthermore, the FTC alleged TeleCheck failed to follow reasonable procedures to assure maximum possible accuracy of the information it disseminated to merchants as required by the FCRA.    
 
The FTCs investigation comes at a time when consumers are working to rebuild their credit after the rough economy made it difficult for many consumers to hold down jobs and to pay their bills.  If credit reporting agencies like TeleCheck fail to comply with the requirements of the FCRA and as a result disseminate inaccurate information and refuse to investigate consumer disputes, consumers may be denied the opportunity to purchase basic needs such as food and medicine or may be unable to make rent or mortgage payments, motivating the FTC to order a hefty fine on the company.      

The FTCs order requires TeleCheck to pay $3.5 million and to change their policy regarding notifying consumers of their right to dispute inaccurate information and to investigate consumer disputes. 

If you have an issue with the accuracy of information on your credit report and need additional information contact SmithMarco P.C. for a  free consultation with a licensed attorney.

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Wed, 29 Jan 2014 09:01:52 GMThttp://www.protectingconsumerrights.com/blog/2014/1/29/telecheck-fined-$35-million-for-violations-of-the-fcra/
Credit Scores to be Aware ofhttp://www.protectingconsumerrights.com/blog/2014/1/31/credit-scores-to-be-aware-of/I recently posted information regarding credit scores and the importance of this number as the determining factor of your credit worthiness.  How is it possible that three little numbers can determine so much about you…whether or not you are approved for a credit card, whether or not you can buy a car, a home or even rent an apartment.  In fact, most consumers are so concerned with their score that a recent consumer report indicated that consumers spend close to $1 billion a year just to obtain copies of their score along with their credit reports.  However, these reports that consumers are spending tons of money purchasing are not actually the same score that lenders receive and use to make major decisions about you.

Research has shown that creditors are not using the credit scores you are familiar with, like FICO, but in fact are using their own methods of scoring based on the information contained in your credit report.  While there is nothing you can do to get your hands on these "secret scores" you can protect yourself and better your chances of approval by knowing what each creditor is looking for prior to submitting your application.  For example there are different scores for each of your purchasing needs, such as automotive scores, revenue scores, deposit account scores, bankruptcy scores and transaction scores which solely monitor your credit card activity.   
   
While these types of scores are not accessible to the average consumer, you may be able to get your hands on them when and if you are denied credit.  When you are denied credit, creditors in compliance with the requirement of the Fair Credit Reporting Act ("FCRA") must provide you with an adverse action letter notifying you of the denial, which report was used in their decision and notifying you of your right to dispute in the event any of the information reported was inaccurate.  When receiving an adverse action letter, make sure to directly ask the lender if the decision was based on any credit scoring model and if so, ask to see a copy of your score or at the very least ask how the score was calculated.  Bottom line is these scores for the time being will more than likely continue to remain secret.  To keep these scores from affecting your ability to obtain credit, try to make a concerted effort to timely pay your bills, try not to spend more than 2/3 of your revolving credit line and keep new credit accounts to a necessary minimum.

If you are having problems with your credit report or credit score and need additional information contact SmithMarco P.C. for a  free case review with a licensed attorney.

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Fri, 31 Jan 2014 10:27:48 GMThttp://www.protectingconsumerrights.com/blog/2014/1/31/credit-scores-to-be-aware-of/
BBB Warns Consumers About Recent Debt Collection Scamhttp://www.protectingconsumerrights.com/blog/2014/1/29/bbb-warns-consumers-about-recent-debt-collection-scam/The Better Business Bureau ("BBB") has recently received numerous complaints from consumers stating they have received debt collection calls from collectors representing themselves as the Federal Bureau of Investigation ("FBI").  Specifically, the complaints state that debtors have been receiving calls with the caller i.d. showing "Federal Investigations Department".  Consumers most often answer the phone believing the call to be coming from the FBI and the caller on the line represents him or herself to be an FBI agent calling to collect a debt for an overdue payday loan. 

The truth is, you may actually have a past due payday loan but the caller does not work for the FBI and he or she is out to collect much more than the balance due and much more than what you actually owe.  The FBI agent/collector is a common scam meant to intimidate debtors into making payment out of fear.  This fictitious agent/collector will set up payment by wire transfer or a pre-paid debt card and when debtor states the amount owed seems unreasonably high, the collector will threaten legal action and jail time to coerce you into making payment.  To most debtors, this seems real and frightening, especially when the caller has your personal information, including full name, address, place of employment and social security number. 

Despite your fear, these fictitious FBI agents have no control over you, cannot sue you and cannot send you to jail.  In the event you receive a collection call from one of these scam artists, try to remain calm and in control.  First and foremost, DO NOT pay the collector any money.  Wire transfers and prepaid debit cards are the same as cash and once the money is handed over it is as good as gone.  Second, hang up on the collector and do not call back.  The longer you stay on the line with a scam collector the more they intimidate you and the more personal information you are bound to disclose, which will eventually be used against you.  If you find you are unable to hang up on the collector, ask for written validation of the debt or an initial collection letter.  Knowing your rights under the Fair Debt Collection Practices Act ("FDCPA") will always protect you.  You are entitled to written proof of the debt and without that proof you are not required to make payment.  If the collector refuses to provide you with proof of the debt in writing, the collector has essentially waived the red flag that the call is a scam and you need not make payment.  Lastly, if the caller represented him or herself as an FBI agent, make sure to report the impersonation to the police. 

If you are having problems with a debt collector contacting you and need the advice of assistance of counsel, contact SmithMarco P.C. for a free case review.

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Wed, 29 Jan 2014 08:27:24 GMThttp://www.protectingconsumerrights.com/blog/2014/1/29/bbb-warns-consumers-about-recent-debt-collection-scam/
Five Myths About Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2014/1/17/five-myths-about-your-credit-score/Your credit score is the triple digit number that represents your credit worthiness or in simple the terms the number that determines how likely it is that you will pay back the money you borrow.  Lenders, such as banks and credit card companies use your credit score to determine whether or not to lend you money, how much money to lend you and at what interest rate.  The better your credit score, the more money you can borrow and the lower the interest rate.  Myths about your credit score have blossomed over the years.  Below is a list of myths and the truth behind these erroneous beliefs.    

Myth Number 1:  The higher your salary, the higher your score

The truth is your income has nothing to do with your credit score or credit report.  Your credit score and report are solely based on your ability to pay your bills in a timely fashion and nothing more.  Your personal wealth, or lack thereof, is irrelevant.

Myth No. 2:  During the application process your credit score can cost you the job

While most employers do a credit check today, they are only entitled to receive a copy of your credit report with your express written consent.  Employers, potential or existing are not entitled to see a copy of your score. 

Myth 3:  Closing your credit card accounts will improve your score

While closing an account may make sense for you financially, it will not always have a positive effect on your credit score.  In fact, closing an active credit card account may actually lower your score depending on how high a balance you carry compared to your credit limit.  If you close a credit card account, it may affect your "credit utilization" (the amount of your balance compared to your amount of available credit), a factor used to help determine your credit score.   

Myth 4:  Looking at your credit report will lower your score

There are two different types of inquiries-soft and hard.  A soft inquiry does not affect your score and a hard does.  Soft inquiries include pulls done for promotional purposes and your own personal inquiries.  You may pull your own report as often as you like and it will never affect your score.  Hard inquiries are those performed by creditors and will affect your score.  Hard inquiries include pulls made when you apply for credit, when an existing creditor looks at your report or when a collector looks at your report. 

Myth No. 5:  There is only one credit score

Fact is, there are many different credit scores and your score may vary depending on which company is used and which credit reporting agency's information is used.  

If you need additional information regarding your credit report and credit score and wish to speak with a licensed attorney, contact SmithMarco P.C. for a free case review.

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Fri, 17 Jan 2014 11:11:47 GMThttp://www.protectingconsumerrights.com/blog/2014/1/17/five-myths-about-your-credit-score/
Protecting Your Credit & Identity in the New Yearhttp://www.protectingconsumerrights.com/blog/2014/1/15/protecting-your-credit-identity-in-the-new-year/With the holidays over and the New Year upon us, now is as good a time as any to make a commitment to improve your credit.  Post holiday shopping, most consumers credit cards bills see the effects of this giving season and you need to ensure your card(s) were not compromised during these last few months.  When the bills start showing up in your mailbox, hopefully you saved your receipts and can begin the process of comparing your charges to any charges that may not be yours.

If after your review, you feel you have been a victim of identity theft, the following is a step by step description of what you need to do and how to begin the process of repairing and protecting your credit.

Step 1:  If the bank has not already called to alert you of fraudulent activity on your card, contact the bank and close the account that has been compromised.  The bank will send you a new card with a new number. 

Step 2:  Report the fraudulent activity by filing a police report.  Some creditors may request a copy of the report prior to closing the account and issuing a new card. 

Step 3:  Place a fraud alert on your credit file with all three credit reporting agencies.  You may place an alert with all three bureaus for a minimum of 90 days which will require any creditor to contact you prior to extending credit.  While the alert cannot guarantee further fraudulent activity in your name, it is a safeguard and goes a long way to protect your identity.   

Step 4:  Order a copy of your credit report.  You are entitled to one free copy of your report annually and if you have not already received a copy (chances are you have not considering we are in the first few weeks of the year), you can order yours online at annualcreditreport.com or by calling or mailing a request to the credit reporting agencies.  Review your report and make sure no fraudulent accounts appear. 

Step 5:   Should fraudulent accounts appear on your report, dispute the inaccurate information with the credit reporting agencies.  Make sure to dispute in writing and to include a copy of your police report showing you have been a victim of identity theft. 

Step 6:  File a complaint with the Federal Trade Commission.

If you have been a victim of identity theft and need additional information or would like the assistance and advice of counsel, contact SmithMarco P.C. for a free case review.

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Wed, 15 Jan 2014 13:03:31 GMThttp://www.protectingconsumerrights.com/blog/2014/1/15/protecting-your-credit-identity-in-the-new-year/
More From the CFPB on the TCPAhttp://www.protectingconsumerrights.com/blog/2014/2/5/more-from-the-cfpb-on-the-tcpa/Over the past several months I have shared more than a few posts on the Consumer Financial Protection Bureau's ("CFPB") proposed rule-making efforts for the 2014 calendar year in addition to sharing information on the trend toward consumers filing fewer Fair Debt Collection Practices Act ("FDCPA") cases and bringing more Telephone Consumer Protection Act ("TCPA") claims

The reason for the increase in TCPA cases is fairly obvious as cellular phone use continues to increase across the general public.  With the widespread epidemic of mobile phone use, the TCPA has had to tighten its reigns to protect consumers from creditors contacting them and violating the consumer laws. 

In its initial changes to the existing law, the CFPB announced it will be focusing its efforts of improvement on technology and must find a way to be fair to both consumers who solely use their cellular phones as a means of communication and creditors who must reach a the vast population of consumers by using auto-dialed calls.  The CFPB specifically stated that it must address the use of cellular phones in establishing its new rules for debt collectors.  While the CFPB does understand that the collection industry needs to use auto-dialer systems to contact a great amount of debtors it remains to be seen how the CFPB will fairly balance the laws that focus on the collection process.       

The CFPB has stated that it is still open to comments from the general public through mid-February and then shortly after that it will begin drafting new rules on the subject.  If past behavior is any indication, we can expect to see great changes to protect consumers under the TCPA rather quickly as the CFPB wants new rules in place sooner rather than later.  The CFPB has tipped off the public letting them know the first set of rules will focus on creditors' responsibilities under the FDCPA but not far behind should be provisions restricting creditors' conduct under the TCPA which will no doubt apply also to lenders and collection agencies.        

For more information on the TCPA contact SmithMarco P.C. for a free case review.

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Wed, 05 Feb 2014 13:27:37 GMThttp://www.protectingconsumerrights.com/blog/2014/2/5/more-from-the-cfpb-on-the-tcpa/
How to Read a Credit Reporthttp://www.protectingconsumerrights.com/blog/2014/2/11/how-to-read-a-credit-report/With the start of the new year just about one month behind you, making the decision to address your credit report in 2014 is as easy as requesting a copy of your own.  Visit AnnualCreditReport.com for a free copy of your report and keep reading to learn how to understand what is on your report.  Reading your report may seem overwhelming at first, but after a basic lesson about what is included in your report reading the information will be easier than it seems. 

First, your report will include your personal information.  When reviewing this section of your report, you want to make sure all of your information is accurate, including your full name, address, social security number, employment, etc.  Understand that variations of your personal information may exist on your report, but the current information should be accurate. 

The majority of your report is made up of account information.  In the Account Information section of your report, you will find all of the accounts you currently have as well as some of your old accounts that may no longer be active.  Each account will be broken up into categories including negative accounts, accounts in good standing and public records.  Some credit reporting agencies also have a category for collection accounts.  Under each category will be a tradeline or an individual account and information on the account.  Account information will include, the name of the creditor, the date the account was opened (and closed if the account is no longer active), the type of account, your highest balance and/or credit limit, your payment status and payment history.  When reading through each tradeline, make sure the information reported for each account is accurate, even if the account is negative, make sure the balance is accurate, the date of last payment, etc.       

Your Report will also contain a section for inquiries.  Here you will find a list of all of the companies that have reviewed your report over the last two years.  While you may be concerned about the great number of companies taking a peek at your personal information, first you need to understand that there are two types of inquiries, soft and hard.  Soft inquiries are those that are for promotional purposes or for pre-approved credit offers and these companies do not see your full report and are not included in calculating your credit score.  Hard inquiries are pulls of your report by companies with which you apply for credit or pulls by collection agencies.  Hard inquiries do affect your score and these companies will receive a complete copy of your report.      

Your report will also include a section for Public Records.  This category includes any bankruptcies you may have filed, judgments, tax liens and collection accounts.  These types of account remain on your credit file for a period of seven to ten years.  Review the information to make sure it is accurately report with correct dates so that it does not remain on your credit file for longer than necessary.   

If you are in need of assistance with your credit report contact SmithMarco P.C. for a completely free case review.

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Tue, 11 Feb 2014 07:32:47 GMThttp://www.protectingconsumerrights.com/blog/2014/2/11/how-to-read-a-credit-report/
Using Tax Season as a Time to Address Your Financeshttp://www.protectingconsumerrights.com/blog/2014/2/13/using-tax-season-as-a-time-to-address-your-finances/It is that time of year again.  Time to organize your taxes and get ready to pay your 2013 tax bill on April 15, 2014.  While most consumers spend the majority of their time gathering and assessing what is owed, consumers don't take nearly the same care to consider their financial well-being.  Taking an assessment of your financial health is imperative to improving your credit score which will allow you to lower your debt and have more money to save and to spend.  Follow these three simple steps to improve your credit and say hello to a financially healthier you.

Step 1.  Order a copy of your credit report

Order a copy of your credit report and review it to make sure all of your information, both personal and accounts are reporting accurately.  It is important to review your report at the very least, annually and you are entitled to one free copy of your report per year at AnnualCreditReport.com.  There are three major credit reporting agencies, Equifax, Experian and Trans Union, make sure to order a copy from each agency because they do not always report the same information.    

Step 2.  Start building a safety net

Start building a safety net for you and your family.  Whether you are single, plan to start a family or already have a family to support, putting money into savings will help alleviate some of the stress of unknown financial surprises.  Saving can be difficult for most families considering the high cost of living these days but financial emergencies are almost guaranteed and you can help fray some of the costs by having a safety net to fall back on.  Try to put aside an amount of money that is reasonable for your budget, that will allow you to store some money but not make it impossible to pay your bills. 

Step 3.  Review your contracts

Banks, insurance companies and credit card companies change their policies all the time and the average consumer just ignores the letter in the mail notifying them of these "major" changes.  Use this time to review all of your policies and contracts to make sure they are still the best option for you.  Perhaps there is a credit card with a lower interest rate or an insurance policy with a lower premium.  Reviewing your finances will take some work on your part but the benefits you will gain from lowering your interest rates or premiums will be well worth your time.   

The New Year is all about starting fresh.  For more information on how to address your finances, contact SmithMarco P.C. for a free case review.

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Thu, 13 Feb 2014 07:45:59 GMThttp://www.protectingconsumerrights.com/blog/2014/2/13/using-tax-season-as-a-time-to-address-your-finances/
Should an Oral Dispute of Your Debt be Sufficienthttp://www.protectingconsumerrights.com/blog/2014/2/13/should-an-oral-dispute-of-your-debt-be-sufficient/The Fourth Circuit officially allows consumers to orally dispute the validity of a debt.  In Clark v. Absolute Collection Services, Inc., ("Clark") the Fourth Circuit recently held that the section 1692g(a)(3) does not require a consumer's dispute be in writing.  Under Section 1692g(a)(3) of the FDCPA, the statute requires that collection agencies send written notice to a consumer which includes, "...a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector...."  In support of this requirement, under section 1692g(b), when a consumer "notifies the debt collector in writing" that the validity of the debt is disputed, the collector must cease all collection activity until verification is provided to the alleged debtor. 

In Clark, Dana and David Clark incurred a debt at a healthcare facility in North Carolina.  When the Clarks were unable to pay off their debt, the facility referred the debt to Absolute Collection Services, Inc. ("Absolute") for collection.  In its effort to collect the debt, Absolute sent two separate collection letters to the plaintiffs, stating in relevant part, "ALL PORTIONS OF THIS CLAIM SHALL BE ASSUMED VALID UNLESS DISPUTED IN WRITING WITHIN THIRTY (30) DAYS...."  Shortly thereafter, the Clarks filed suit against Absolute alleging its letter was in violation of the FDCPA.  The Clarks complaint stated that by requiring a consumer to submit a written dispute, the collection agency was in violation of section 1692g(a)(3) of the FDCPA as there is no requirement notice of a dispute be put in writing.  Absolute argued to the contrary, that its notice complied with section 1692g(a)(3) of the FDCPA because it imposes "an inherent writing requirement" as has previously been adopted by the Third Circuit. 

In conjunction with the Second and Ninth Circuit, the Fourth Circuit held that the plain language of the FDCPA section 1692g(a)(3) should be enforced as it is written, which is without the requirement that a consumer's dispute be in writing.  If you need additional information on disputing your debt, contact SmithMarco P.C. for a free case review.

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Thu, 13 Feb 2014 08:40:09 GMThttp://www.protectingconsumerrights.com/blog/2014/2/13/should-an-oral-dispute-of-your-debt-be-sufficient/
Medical Debt Can Affect Your Credit Scorehttp://www.protectingconsumerrights.com/blog/2014/2/20/medical-debt-can-affect-your-credit-score/Most lenders looking at your credit report are looking at how much debt your carry.  A typical lender does not care what type of debt you have, but places more value on how much debt you have.  Medical debt may still be different from other types of debt, because it is more often than not out of your control.  Medical debt will affect your credit score if it goes unpaid even though it is usually not planned for. 

As a general rule, your timely paid medical bills do not get reported on your credit file.  However if you fail to pay, the debts are often sold to a third party collection agency who is quick to report your negative debt and come after your for payment plus interest damaging your credit score for as long as seven years from the date you first fell behind.

In the event you fail to pay your medical bills and you have a collection agency coming after you, your first course of action should be to make sure the amount of debt being collected is accurate.  More often than not, when medical debts are sold to collection agencies for pennies on the dollar.  The agencies do not do their due diligence and research the accuracy of the debt prior to contacting you for collection.  Reach out to the collector and make a formal request for validation of the debt.  The collector must cease all collection efforts and provide you with proof that the debt is valid prior to continuing to collect payment. 

Should the collector provide you with information proving the debt is accurate, prior to making payment, contact your insurance provider to make sure your coverage is adequately reflected on the bill or that the bill was submitted to your insurance carrier in the first place.  Errors do happen in medical billing, so ensuring the bill was correctly submitted may result in you not having to hand over a check.    

After contacting your insurance company if you discover you are still responsible for the full payment and you have every intention of paying, contact the hospital or doctor's office and see if you can pay them directly.  Paying the original creditor directly may prove to be much less of a hassle and may save you some money, but there is no guarantee they will accept your payment.  If you have a history of making timely payments in the past, there is a chance they will take your lump sum payment or even work out a payment plan.  Bottom line is, you must stay on top of all of your medical bills, even bills sent to your insurance company.  Make sure the medical provider always has your correct address and request it send you copies of all bills, even those submitted to your insurance company for payment.  It is your credit report that will suffer the consequences, even if it is not your mistake.

For more information on medical debt and your credit report, contact SmithMarco P.C. for a free case review.             

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Thu, 20 Feb 2014 09:17:24 GMThttp://www.protectingconsumerrights.com/blog/2014/2/20/medical-debt-can-affect-your-credit-score/
Knowing the Difference Between a Creditor and Debt Collectorhttp://www.protectingconsumerrights.com/blog/2014/2/25/knowing-the-difference-between-a-creditor-and-debt-collector/If you are one of millions of consumers and have at least one or more debts in default, you have probably been contacted by a debt collector demanding payment.  In an effort to protect your rights, the Fair Debt Collection Practices Act ("FDCPA") was enacted to shield you from abusive collection tactics, however the law only applies to debt collectors and not to original creditors.  More often than not, consumers are unsure of the difference between the two and learning the difference will help you understand your rights to better protect yourself.

The FDCPA protects consumers from abusive collectors.  Congress adopted this statute to protect consumers like yourself, from scrupulous collectors who will stop at nothing to collect a payment.  The FDCPA restricts collectors' conduct, including what they can and cannot say, whom they can speak to and even how often they can call.  However, all too often consumers are confused by the difference between a debt collector and original creditor.

Under the FDCPA, a creditor is defined as a person or entity that originally extends you credit.  For example a credit card company, a bank or any other original lender from whom you borrowed money is a creditor. The FDCPA was designed only to protect your from conduct committed by debt collectors and does not apply to creditors.  All too often, consumers complain about the conduct of creditors and while there are other areas of law to protect you in regard to creditor misconduct, it does not fall under the umbrella of the FDCPA.  Under the FDCPA, a debt collector is often a third party engaged in the business of collecting or attempting to collect a debt owed to the original creditor.  Examples of collectors include collection agencies, attorneys or debt buyers. 

While the FDCPA only protects you from the abusive tactics of collectors, there are exceptions to the rule.  The FDCPA only applies to consumer debts and not to business debts.  A consumer debt is defined under the FDCPA as a debt that is incurred for personal or household use.   The FDCPA does not protect you from government employees collecting debts, both federal and state employees are exempt from the rules and regulations of the Act.  Legal process servers are also exempt from the rules of the FDCPA when serving you with a lawsuit related to the collection of a debt.  

If you are in need of more information regarding your involvement with a debt collector, contact SmithMarco, P.C. for a completely free case review.

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Tue, 25 Feb 2014 09:51:15 GMThttp://www.protectingconsumerrights.com/blog/2014/2/25/knowing-the-difference-between-a-creditor-and-debt-collector/
Ninth Circuit Rules Against Spokeo on FCRA Claimhttp://www.protectingconsumerrights.com/blog/2014/2/25/ninth-circuit-rules-against-spokeo-on-fcra-claim/Earlier this month, the Court of Appeals for the Ninth Circuit held that the plaintiff in Robins v. Spokeo, Inc., did not need to allege actual injury to prove the existence of a willful violation of the Fair Credit Reporting Act ("FCRA").   On appeal, the Appellate Court reversed the lower court's dismissal of the plainitff's claim and held that a violation of a consumer's statutory rights was sufficient to state a claim under the Act. 

In Robins v. Spokeo, Inc., the plaintiff, Thomas Robins ("Robins") sued Spokeo, an online company that represents itself as the go-to website to retrieve "hard-to-find" information about people, for wilfully violating the FCRA.  The claim began when Spokeo provided inaccurate information about Robins regarding his employment status, marital status, age, educational background and wealth level during a background check.  At the lower court level, Robins' suit was dismissed stating he "failed to allege that Spokeo caused him any actual or imminent harm."  Robins alleged he had trouble seeking employment and he was concerned that the inaccuracies on his report would affect his ability to obtain credit, employment or insurance in the future.  While Robins was unable to show he suffered any actual harm as a result of the inaccurate report, he asserted Spokeo committed a willful violation of the FCRA by failing to fulfill its duties under the FCRA.  The lower court stated that he failed to state a valid claim under the statute because he could not prove he suffered any real damages and a future threat of damage was insufficient.   

On the contrary, the Appellate Court found that a violation alone of the FCRA was adequate to allow Robins to file suit and that the statute does not require a plaintiff to prove he suffered any actual damages.  Spokeo also argued that it is not a consumer reporting agency under the FCRA and could not be held liable under the statute.  The Court also disagreed with this interpretation, and stated that the reports Spokeo provided were intended to be used for employment and credit verification and therefore its conduct was subject to the FCRA.   

This decision against Spokeo will more than likely be applauded by consumers nationwide, as suits dealing with data privacy have continually been dismissed for failure of the plaintiffs to prove actual damages.   Bottom line, the Ninth Circuit Court of Appeals holds that a plaintiff can file suit under the "FCRA", even if the plaintiff cannot allege that he or she suffered actual damages.

If you are in need of assistance or advice from counsel regarding your credit report, contact SmithMarco P.C. for a completely free case review.

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Tue, 25 Feb 2014 09:18:56 GMThttp://www.protectingconsumerrights.com/blog/2014/2/25/ninth-circuit-rules-against-spokeo-on-fcra-claim/
The Effect of a Judgment on Your Credit Filehttp://www.protectingconsumerrights.com/blog/2014/3/11/the-effect-of-a-judgment-on-your-credit-file/While time has passed since our ailing economy, many consumers continue to suffer the effects.  Loss of jobs and unpaid bills allowed collection agencies to shine and while things seem to be on the up-swing, your unpaid debt will follow you for years to come.  When collectors are making no headway from the constant phone calls and collection letters, many take legal action and file suit to obtain a judgment against you in hopes of getting paid.

Once a collector has a judgment against you, there are several options the collector may choose from in an effort to receive payment.  The collector may file a lien against your property or garnish your wages.  Some collectors will even seize the assets in your savings and checking accounts.  When a collector obtains a judgment against you, it more often than not, reports the judgment on your credit file which can do some serious damage to your score, causing you to pay higher interest rates or can cause your existing lenders to lower your credit limits on your accounts as well.  Furthermore, applying for new credit may result in denials because of the judgment on your report.  New lenders may be hesitant to lend you credit with knowledge that you have not paid back your previous lenders.    

A judgment can remain on your credit file for seven years from the date it was filed against you.  After seven years it should automatically be removed from your report and if it not deleted, you need to contact the credit reporting agency to ensure its removal.  The older the judgment the less it will affect your report and a paid judgment will help to improve your score as well. 

With the knowledge that a judgment will remain on your credit file for seven years, regardless of whether or not it was paid in full, making an effort to avoid a judgment is in your be