Tag Archive | lawsuit

Can I strike a Default Judgment?

We seem to get 3-4 phone calls per day asking what to do about a judgment.  In most cases, the only option is to settle.  You cannot raise “statute of limitations” defenses, or say that “it was my ex-wife’s debt”.  Those are affirmative defenses that needed to be raised BEFORE the default judgment was entered.  Having said that, all default judgments should be reviewed because there is an opportunity to strike them under certain circumstances.

In order to get a default judgment, the Plaintiff must do everything properly.  That means that they must properly serve you with the complaint, they must include the proper notice to defend, the proper important notice, and if the debt was sold, it must include an allegation that they are the assignee of the account.  As far as service goes, this means that the sheriff must have served you or an adult in your family with the lawsuit. Every once in a while, we come across a case where “sewer service” occurs.  This is where the lawsuit is allegedly served upon “someone”, but you have no idea who that “someone” is. This happens most often when you live in an apartment complex or you move from your residence.  Service may also be obtained by mail, but only after a Court Order is issued.  Another scenario that we see is where the Notice on the Notice to Defend is incorrect.  It might be missing language, have extra language, have the incorrect phone number or address for the bar association, there are a few different issues that we look for.  The same applies to the Important Notice (or 10 day notice).  We had a scenario where a certain attorney was using an incorrect Important Notice for about 2 years… and every judgment that they have entered is subject to being stricken.

If you would like a review of your default judgment, you will need to provide us, or another attorney, with a copy of several documents.  The Complaint, the Important Notice, the Sheriff return document and a copy of the complete docket statement.  We can review for errors and determine whether any mistakes were made.  If any were made, then you can petition the court to strike the judgment.  If this is successful, this does NOT mean that you win the case.  It simply means that the lawsuit is re-opened.  You will have an opportunity to defend the case from that point.

Posted in Lawsuits

Go It Alone? Bad Move on a Credit Card Lawsuit

I had a conversation with a gentleman yesterday that I have had numerous times with other potential clients.  The caller asks for a case review, which we are always glad to offer.  He was being sued by Portfolio Recovery Associates for about $7000, which is alot of money.  I discussed the claim in detail, explaining what needed to be done and what we could do for him.  Based upon what we discussed, I was nearly certain that I would win the case if hired.

At the end of the phone call, the man said that he was going to file his own answer. Even though I hear this all the time, I am still very shocked each time it happens. I explained to him that filing an answer was the wrong move, that he was making a very large, possibly fatal mistake, and he said that was still what he was going to do.  I explained to him that filing objections on his case would be the proper move, and he said that he would add the objections to his answer and that he was confident that the court would honor them.

The first question that I have, that remains unanswered, is why did you call an attorney if you are going to ignore their advice?  The second question that I have is why would you risk so much money when you have a guaranteed winner if you hire a consumer attorney?  The third question that I have is why do you think that you can learn what I know by spending an hour or two on google?  Obviously, I will never receive answers to my questions…. This gentleman kept insisting that he was making the right move, that he knew all about “standing” and other legal concepts.  I did ask him why he called my office if he had no intentions of hiring an attorney and he clearly felt that he knew more about the law than I did, and his response was that he just wanted to see what an expert would say.  Well, the expert spoke and the expert says that he is going to lose, GUARANTEED.  It is inevitable that in 3-4 months this gentleman will call me up and ask me how much it costs to file an appeal because he got crushed at the arbitration hearing.  Well, sir, the fee is much higher to handle an appeal than it would be to handle the original case, because now I have to try to correct the mistakes that you made, and that will require extra court appearances…

Look, I know my job and I know credit card law. I know every case and I know how most counties handle these matters.  I know the proper response and the proper defenses.  I know how to defend you  and protect your rights and interests.  You may be smarter than me, obviously there are many people who are smarter than me, but there are very very few, if any, who know Pennsylvania Credit Card Law better than me.  You cannot go onto google for an hour or two and think that you are prepared to defend your case, especially when its for $7000.

You don’t want to represent yourself on these cases for many reasons.  You don’t know the proper response to the lawsuit.  Even if you did know what it was called, you don’t know how to draft and present it.  You don’t know how each collection agency or attorney handles things, what their procedures and tendencies are.  We craft defenses based in part on what is in the complaint and on which law firm is representing the debt buyer.  Each debt buyer has different attachments that they place in the lawsuit, that require different responses.  Most importantly, you should not personally be involved in the defense of the lawsuit, at least at the onset, because you are a liability.  That’s right, you are a danger to your own case.  You can be cross examined and your testimony can be used against you.  Bet they didn’t tell you that in the internet chat room that you visited when drafting your own answer…

If you call my office, I am glad to give a consultation, even if you are not going to hire me or my firm.  That being said, if you don’t hire us, and you don’t hire someone else who does what we do, you are setting yourself up to lose a case that you would almost otherwise be guaranteed to win.

Posted in Lawsuits

Telephone Communication Protection Act (TCPA)

In 1991, the United States Congress passed the Telephone Consumer Protection Act (“TCPA”).  The primary goal of the TCPA is to protect individuals from harassing telemarketing phone calls.  More specifically, the TCPA is designed to prevent the annoying pre-recorded calls that you receive from unknown numbers at all hours of the day.  Common pre-recorded messages will sound something like this:

“Congratulations, you qualify for an all-expense paid trip to sunny Florida.  To redeem your gift, press 1.”

“Did you know that you can save on your electric bill?  Press 0 to speak to one of our representatives.”

These pre-recorded messages can be for anything including cruises, utilities, vacations, emergency bracelets, professional services, etc.  If you have received one of these pre-recorded phone calls, you may have a lawsuit against the company who initiated the phone call.  But first, you need to gather more information.  Make sure you capture an image of the caller ID that shows the time, date, and phone number.  You can take a picture with your cell phone, or capture a screen shot.  Next, follow the command prompts by pressing “1,” “0,” or whatever you are directed to do.  Once you are connected to a live person try to get that person’s name and who he or she works for.  Once you have that information, we can start doing the research to determine who called you and whether or not you have a claim.

There is no reason for you to suffer the harassment of telemarketing phone calls.  Thanks to the federal government, you can make money from them, if you gather the right information.  A violation of the TCPA could be worth up to $1,500.00 per phone call.  At Morrow and Artim, P.C., we don’t charge you for our representation, so you only pay us once we prevail.  Our fee would come from the “victory” proceeds.  If you think you are receiving unwanted phone calls of this nature, give us a call.  We will determine whether your case is ready, or what you need to do during the next phone call to secure the claim.

Posted in Other

Can They Garnish My Wages???

Several inquiries this week on this hot topic. Debt collector calls person and says that they are going to start legal processing and wage garnishment if the person doesn’t pay $500 by 6 p.m.  Pretty scary threat, huh?  Well, let’s think this through.  If you owed me money and I could garnish your wages, why would I call you?  Why would I bother?  I would simply garnish your wages and get my money.  Sounds easy, right?

Fortunately, that’s not how it works, especially in Pennsylvania.  To begin, wage garnishment generally cannot occur unless a court says that it should occur (administrative wage garnishments can occur on student loans, this does not require a court proceeding) .  This generally means that there has to be a lawsuit and you have to lose.  Even after you lose, the case has to be one that fits into the permissible wage garnishment sections.  PA only allows wage garnishment in very limited circumstances… back rent, child support and related family law/divorce issues, restitution, certain student loans, and certain out of state judgments that are properly transferred into Pennsylvania.

So a debt collection lawsuit for a credit card is not one of the listed entries for which a wage garnishment can occur (again, unless there is a valid out of state judgment that is properly transferred into PA).  If you live here and you work here and you are sued here, there is no possibility of wage garnishment in PA if you are sued on a credit card claim.

So why does the debt collector make the wage garnishment threat?  Because it works, it scares you, it places you in a position of complete fear.  Nobody wants to have their wages garnished, right?  You would do anything to avoid the wage garnishment, at least that is the debt collector’s thinking.  They are scaring you into paying, which is completely ILLEGAL.  A debt collector cannot make a threat that it cannot legally carry out.  The law that protects you when the debt collector makes such a threat is called the Fair Debt Collection Practices Act (FDCPA for short).  The FDCPA gives you the right to sue any debt collector that violates the law, AND IT REQUIRES THE DEBT COLLECTOR TO PAY YOUR LEGAL FEES.  Think about that for a minute… the debt collector has to pay your attorney to sue them.  It’s a truly wonderful law that we use on a daily basis.

If a debt collector has threatened you with wage garnishment, rather than getting scared, take the time to ask him/her some questions.  Get their name, address, phone number, any contact information that you can, and then contact our office.  We would be happy to offer you a free, no obligation review of your issue.

 

Posted in Garnishment

National Collegiate Student Loan Trust

We’ve seen a tremendous influx of filings by National Collegiate Student Loan Trust across Pennsylvania.  National Collegiate Trust (NCT) is a company that buys delinquent private student loan accounts and then tries to collect on those accounts.  We have handled dozens of these cases over the last few months.  They are similar to the defense of credit card lawsuits, which we have been doing for years, in that these cases are based upon documents…and the debt buyer doesn’t always have access to all of the documents.

National Collegiate isn’t just one company or one trust, its a conglomerate consisting of many separate trusts with National Collegiate Funding as the parent company.  We have seen them buy private student loans from PNC Bank, JP Chase, Bank of America, Credit One and a few others.  For the most part, these loans are usually several years old and many of our clients have never made a payment on these loans.  The older the better, when you are working on the defense side like we are.

The lawsuits filed by NCT are generally defective, at least initially.  As mentioned previously, these lawsuits are based upon documents.  Loan agreements, signed applications, terms and conditions, payment histories… these are some of the documents that NCT needs to prevail in a lawsuit against you.  If you have received one of these lawsuits and they have some of these documents, it doesn’t mean that you are going to lose.  To the contrary, you still have a fantastic chance at winning.  Other than documentation, there are numerous defenses that can be presented.

Contact my office for a free consult if you have a National Collegiate case.  If we can help you, we’ll tell you.   If we can’t help you, we’ll also tell you that too.  We don’t beat around the bush simply to have a client retain us.  We tell you the straight truth with all of the facts and let you make an informed decision as to how you want to proceed.

 

Posted in Other

Discover Bank beat down!

We just had a tremendous victory against Discover Bank.  Discover had sued our client in small claims court.  They were not overly prepared and we won convincingly. Discover filed an appeal and immediately commenced discovery.  (Discovery is the process of asking for information about a case, it is very time intensive and detailed).  After answering all of the discovery we patiently waited.  Discover, throughout, kept begging us to settle the case.  While we did discuss it with our client, in great detail, she wanted to move forward with the defense.  After several pre-trial motions by both our firm and the collection firm, the case was set for trial.

Clay Morrow handled the hearing for our firm and went right at the Discover witness.  The witness was grilled by Clay in regards to the accuracy of the statements and the underlying contract.  After a thorough pounding, the witness was rendered un-credible.  Our client held up under heavy cross examination from the Discover attorney.  At the conclusion of evidence, Judge rendered a verdict in our client’s favor.

Posted in Lawsuits

Portfolio Recovery Associates – Who are they?

We have seen a surge in recent lawsuits being filed by Portfolio Recovery Associates.  Portfolio Recovery is a large company whose sole business is to purchase allegedly delinquent credit card accounts for pennies on the dollar and then try to collect on the full amount. The most recent data that we have seen shows that Portfolio is now purchasing bad debt for 1.75 cents on the dollar.  A great price for them, don’t you think?  Generally, after purchase, Portfolio  will send a letter to you (they are required to do this by law, but they do not always do it) and/or they will call you.  They do not want  to sue you, they want to collect money from you, and they hope that you will voluntarily pay them.  A lawsuit will occur if you do not.  I have not seen many instances where Portfolio sells its accounts to other purchasers, so if they obtain your account, you either pay them or they will sue you.

That may scare most people, but it shouldn’t scare you.  If you are here reading this, then you are smarter than most of the general public.  It means that you are doing research, and that is a good thing.  It also means that you are doing research in the right place, which is even better.  The truth of it is that a lawsuit filed by Portfolio Recovery Associates in Pennsylvania should not scare you.  It should concern you, sure, but it should not scare you.

When Portfolio purchases these accounts, in most instances they do not obtain the documentary evidence that they need to prevail against you in a court of law.  Their business model is based on 3 things:  1) they acquire the accounts cheaply; 2) they assume that many people will be frightened and will pay them voluntarily; 3) they assume that you are not smart enough to contact and/or hire an attorney.

Posted in Collection Agencies, Lawsuits, Portfolio Recovery

Credit Card Lawsuits – What NOT to do!

The sheriff arrives at your door with papers, or, the mailman asks you to sign for a certified letter.  Uh oh, you have just been served with a credit card lawsuit.  What do you do now?  Let’s start with what you should NOT do… with number one on the list being: ignore the lawsuit.  You can’t pretend that you didn’t receive it, and you cannot hope that it will go away on its own, because it won’t. Number two, do not call the creditor.  This is a huge mistake that many people make.  You are not a negotiator, (well, chances are that you are not a negotiator) so you shouldn’t speak to the creditor (in addition, you might be better off defending the lawsuit than negotiating it).  Number three, do not call a debt settlement company.  As we have mentioned in other posts, every single debt reduction or debt settlement company that we have encountered has either been in a best case scenario a company that grossly overcharges and in a worst case scenario a complete scam.

So what do you do?  Call a consumer attorney.  For the life of me, I cannot figure out why this isn’t everyone’s first choice.  My office offers a free initial consultation on a credit card lawsuit, as do most other reputable consumer law firms.  Let an attorney who deals with this sort of issue on a daily basis review your lawsuit.  I will tell you if you should defend the case, negotiate, or take another action.  Certain cases should absolutely be defended, and others absolutely should be negotiated.  A good consumer attorney can usually make this judgment in a few short minutes.  Take the time and contact our office or the office of another consumer attorney if you are faced with a credit card lawsuit.  412-823-8003 or 1-888-536-6644 for a free consultation.

Posted in Lawsuits

District Justice Lawsuits

There has been a growing trend with the collection agencies towards filing their credit card lawsuits at the local magistrate or district justice.  My belief is that this is a cost savings measure on their part.  Statistics show that approximately 85% of the people who are sued by collection agencies on credit card debt do not defend themselves.  The cost savings for the collection agencies works like this:  At the DJ level, there is no hearing unless the defendant notifies the court that they intend to defend the case and would like a hearing.  In other words, if the plaintiff (collection agency) files a lawsuit at the local DJ, and the defendant fails to respond, then the DJ automatically enters judgment against the Defendant, without even having a hearing.  The plaintiff company does not need to send a representative/attorney to court in this instance.

Our best advise, obviously, is to have a consumer attorney representing your interests even at the district justice level, whether its our firm or another firm.  As we have mentioned in previous posts, collection agencies are rarely prepared to do battle at the district justice level and our chances of success are extremely high.  If you are facing a collection agency or credit card lawsuit, please contact our office at 412-823-8003 or 1-888-536-6644 for a free case review.

Posted in Collection Agencies, Lawsuits, Other

Debt Settlement Companies and Lawsuits

In previous posts, I have advised all of you to avoid Debt Settlement Companies like the plague.  In my experience, I have found that they either are outright scams, or, they simply charge way to much for the service that they provide.  Lately, we have found a new issue with a few of these companies and it has really been making me angry.  We are only 11 days in to this month, and I have already received 3 calls from potential clients who allowed a debt settlement companies to prepare or assist in preparing a response to a lawsuit.  In each case, I had to explain to the potential client that the responses that they allowed the debt settlement company to prepare were hurtful to their lawsuit.  All three of these clients likely would have won their lawsuits had they hired us from the start.  Unfortunately, they allowed these companies to prepare the responses, which were improper and/or inadequate, and which put the client in a disadvantaged position.  The sad part is that the responses were prepared by attorneys for the debt settlement company.  (Note: not any old attorney can prepare a response to a credit card lawsuit, and this is especially so when the attorney is not licensed in Pennsylvania). 

In each case, I had to advise the client that their case had been undermined by the inappropriate response of the out of state attorney that was retained by the debt settlement company.  It would now cost more in legal fees to try to correct or minimize the damage that had been done versus if they had hired us from the beginning.  The message here:  DO NOT LET A DEBT SETTLEMENT COMPANY ASSIST YOU IN PREPARING A RESPONSE TO A LAWSUIT.

Posted in Lawsuits, Other

Credit Card Lawsuits

If you are faced with a credit card lawsuit, whether its an original creditor or a junk debt buyer, contact my office at 412-823-8003 right away. We offer a free, no obligation review of any credit card based lawsuit that is filed in PA.

FDCPA Attorneys

Many Debt Collectors threaten people, that's a fact. Threats of wage garnishment, jail, fraud charges and contacting employers, friends and relatives happens every day to people just like you. The truth is that most of these threats are illegal. If a debt collector is threatening you, contact our office at 412-823-8003 for a free initial consultation.