May 28, 2016

Sued by a debt collector: what is the actual settlement agreement?

The debt collection lawsuit against you has been settled by us -- so what is the actual settlement agreement you will need to sign?

It is an actual document that we send to you in hard copy or PDF that will settle the case.

It identifies the lawsuit and the parties.

Then everyone disputes owing anyone any money and no one admits to doing anything wrong.

But the debt collector or debt buyer will drop all claims in the lawsuit with prejudice. This means they cannot sue you again.

It also means that the debt will not be sold, transferred, assigned, etc. In other words, the debt dies.

And you give up any claims against the debt collector.

So you might think of this as global peace between you and the debt collector.

Next, we talk about credit reporting. If there is credit reporting by the debt collector, it goes away. If not credit reporting, then the collector promises to never credit report on this account.

Bottom line:
**Case is over
**No credit reporting
**No money is paid by you to the collector -- instead you agree not to sue the collector.

A lot of times these agreements need to be notarized by a notary public. We'll explain all of that when we send you the agreement.

Send us back the agreement as quickly as possible (scan or fax) because we want to get that to the collection lawyer ASAP. Then when that happens, the collection lawyer will ask the court to dismiss the case with prejudice which we will cover in our next article.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

May 27, 2016

Sued by a debt collector: what happens when we settle your case?

The debt collection lawsuit against you has been settled -- what does that mean for you?

First of all -- congratulations! It means the case will be over.

Second, it means that the debt collector must dismiss the lawsuit against you with prejudice -- this simply means the case will be over.

Third, you will not be paying any money to the debt collector.

Fourth, the debt collector will agree to remove its credit reporting from your credit report.

Fifth, you will agree not to sue the debt collector.

The next step will be to talk about the actual settlement agreement which formalizes the settlement but just know that the fact your case is settled is a great thing and you will be able to put this all behind you.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

May 25, 2016

Sued by a debt collector: if the case doesn't settle, do I need to go to trial?

If we have answered your debt collection lawsuit, but the lawsuit does not settle, do you need to go to the trial of your case?

Might sound like a silly question.

And the debt collector who sued you would certainly want you to be at trial.

But we don't care what they want.

We, as your lawyer, care about what is in your best interest.

So the question becomes, "Is it in your best interest to be at the trial?"

Only if you can be there to help win your case. Sometimes you are needed -- for example sometimes with a statute of limitations defense we might need you there to testify.

But we don't need you there to testify about whether Cavalry, LVNV Funding, Midland Funding, Portfolio Recovery, Unifund, etc. actually owns the debt.

You have no way of knowing this so you can't testify to this. You can only testify as to things you have personal knowledge of -- and you have no idea whether they bought the alleged debt or not. (And based upon a decade of doing these cases, they have no idea or no evidence if they actually bought the debt either!)

Our normal procedure is to not have you at court but we will tell you before the trial date whether you are needed at trial or not.

Hope this answers your question!

Our next blog post will be on what happens if your case settles.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

May 24, 2016

Sued by a debt collector: what happens after we file an answer for you?

You have been sued and now we have filed an answer for you. What happens next?

We send you a copy of the answer. And we reach out to the collection lawyer to let them know that we are in the case and normally we give them the option of settling or going to trial.

Settlement means:

1. You pay the debt collector nothing;

2. The debt buyer deletes its credit reporting on you;

3. The case is dismissed with prejudice; and

4. You agree not to sue the debt buyer/debt collector.

We don't always give this choice to the debt collector but often we do.

Then it truly is up to the debt collector what it wants to do -- take the settlement or go to trial.

Normally we get a trial date if we are in Small Claims or District Court. (If we are in Circuit Court we normally get a status conference).

We let you know as soon as we hear from the court.

We'll cover what happens if the case does not settle -- do you need to be at trial?

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

May 23, 2016

FDCPA -- 15 USC 1692a -- Definitions

Continuing our look at the actual text of the FDCPA (Fair Debt Collection Practices Act), let's look at Section 1692a which is the definition section.

As in our previous post in this series, my thoughts and commentary will be in italics and underlined.

As used in this subchapter—
(1) The term “Bureau” means the Bureau of Consumer Financial Protection. [This is the organization that regulates the FDCPA].

(2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium. [This is purposely broad as it literally means any way to communicate about the debt. Text message. Call. Billboard. Facebook post. Etc.]

(3) The term “consumer” means any natural person obligated or allegedly obligated to pay any debt. [This is critical. It means any person who owes the debt or ALLEGEDLY owes the debt. Often debt collectors try to evade responsibility when they are sued by claiming that the plaintiff really didn't owe the debt so the plaintiff is not a consumer. That is absolutely wrong -- if the debt collector says you owe it, then you are a consumer under the law.]

(4) The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. [Normally creditors are not subject to the FDCPA so we have to know who the creditor is as compared to who the debt collector is -- debt collectors are regulated by the FDCPA and creditors normally are not.]

(5) The term “debt” means any obligation or alleged obligation of a consumer 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, whether or not such obligation has been reduced to judgment. [Two critical factors. One is the definition of debt does not include business debt normally. Secondly, even if you don't owe the debt but you are alleged to owe the debt, then it counts. Very similar to the definition of consumer above -- allegedly owing the debt triggers the FDCPA.]

(6) The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. [So this does not include the original creditor who loaned the money or provided the hospital service, etc. We are dealing with collectors, not original creditors.]

Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. [So if a hospital, say Brookwood Hospital, uses an internal collection department but they give it a name to make it sound like a third party debt collector, then the FDCPA stands. We have, for example, a judgment against GE Capital for doing something similar. Bottom line is if a creditor lies and pretends to be a debt collector, then they are a debt collector as far as the FDCPA is concerned.]

For the purpose of section 1692f(6) of this title [normally this means doing foreclosures without a legal right to do the foreclosure], such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.

The term does not include—

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor [so an employee of the hospital collecting in the name of the hospital is still a creditor and not a debt collector]

(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts [here you would look at who all does this alleged debt collector actually collect for and what is the principal business of the alleged debt collector];

(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties [so an IRS agent, etc];

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt [so the process server (Van Slam, etc) is not a debt collector];

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person [this is the big one -- if a company gets the debt and it is not in default, then that company is not going to be a debt collector]; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

(7) The term “location information” means a consumer’s place of abode and his telephone number at such place, or his place of employment [we used to see this all the time and it is coming back in popularity -- the debt collector will illegally call third parties and claim to be looking for location information. But notice location information is only home address, home phone, and place of employment. Nothing else.]

(8) The term “State” means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing.

If you are a victim of abusive debt collection or you simply have questions, feel free to call us at 205-879-2447 and we'll be glad to chat with you about your questions and options.

John Watts

May 16, 2016

Sued by a debt collector: how do we file an answer in court?

So you have consulted with us, hired us, and now is the time for us to file an answer to the debt collection lawsuit filed against you.

We file the answer -- the response to the lawsuit -- electronically through "AlaFile" which is our electronic filing system with court. This almost immediately gives us a "stamped filed" copy back from the court that shows the exact time and date of the filing of your answer.

This is key as when your answer is filed, there is no default judgment against you and instead you will get a trial date.

We send you a copy of the answer by email (and usually by mail also) so that you can have it in your hands. So that you know that your answer/response has actually been filed.

For most people, they feel a huge sense of relief when they know their answer has been filed.

Now the next step is to see what the debt collection company wants to do -- does it want to settle or go to trial? We'll talk about that in our next blog post in this series.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts


April 7, 2016

Sued by a debt collector: how clients hire us

We are often asked, "OK, so if want to hire you to defend me in a debt collection suit, how does that happen?"

The short answer is there are two things that happen.

First, you sign a contract hiring us.

Second, you pay us.

Signing a contract.
You can sign it in our office.

We can mail it to you.

We can email it to you and you print it out and sign.

Or most our clients use "Docusign" where you can sign it electronically on your phone or tablet or computer without needing to find a printer/scanner. No need to download any software -- its very easy to us.

Bottom line is we want to make this as convenient as possible for you.

You pay us.
You can mail us a check or most folks use an online payment method. We include this link with your contract.

So again, whatever is easiest is fine for us.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

April 6, 2016

FDCPA -- 15 U.S. Code § 1692 - Congressional findings and declaration of purpose

This is the first section of the FDCPA (Fair Debt Collection Practices Act). I've quoted the law below and my comments will be in italics and underlined.

(a) Abusive practices
There is abundant evidence [not a little but a lot of evidence] of the use of abusive, deceptive, and unfair debt collection practices by many [not a couple but many] debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. [These are 4 of the major injuries to societies as a direct result of abusive debt collection. So when debt collectors claim that what they do is no big deal, just keep in mind that is the debt collector lying. The law tells us that violating the law -- abusive debt collection -- is a very big deal. Bankruptcy. Divorce. Job loss. Invasion of privacy.]

(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers. [This is certainly true in Alabama now. We can use other laws to sue abusive debt collectors but they always argue only the FDCPA should be allowed in the lawsuit. Without the FDCPA, much of the abusive debt collection would go unpunished which leads to the consequences above and is unfair to honorable law abiding debt collectors as shown in the last section below.]

(c) Available non-abusive collection methods
Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts. [This rejects the crazy argument of abusive debt collectors that they have to break the law in order to collect debt. Can you imagine that argument anywhere else? "We have to make defective cars to make money." "We have to amputate the wrong legs in surgery to make money." Its insane but welcome to the twisted world of abusive debt collectors.]

(d) Interstate commerce
Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce. [This is in here to show how the federal government has the right to regulate debt collection. If something affects "interstate commerce" then normally the federal government can regulate it.]

(e) Purposes
It is the purpose [so this tells us the goals of the FDCPA] of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged [it is unfair for a collector to cheat and break the law when the other debt collectors are following the law -- so the FDCPA protects debt collectors who play by the rules and punishes those that break the rules], and to promote consistent State action to protect consumers against debt collection abuses.

If you are a victim of abusive debt collection or you simply have questions, feel free to call us at 205-879-2447 and we'll be glad to chat with you about your questions and options.

John Watts

April 5, 2016

Case filed -- FCRA lawsuit against Hyundai/Kia Capital for false credit reporting

Here is an example of a recent federal court lawsuit we filed against Hyundai Capital (also known as Kia Capital) for false credit reporting in violation of the FCRA (Fair Credit Reporting Act).

As you can imagine, Hyundai/Kia deny any wrongdoing.

You can read the lawsuit below -- our basic position is that Hyundai negligently or intentionally reported a false balance owed when it knew that our client did not owe any money.

If you are dealing with similar issues, make sure you have done proper disputes under the FCRA and if that still won't fix it, then look at suing in federal court.

Let us know if you live in Alabama and have any questions....

John Watts
205-879-2447

COMPLAINT

COMES NOW the Plaintiff, by and through counsel, and for Plaintiff's Complaint against the Defendant states as follows:
1. This action arises out of Defendant's violations of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq. [hereinafter “FCRA”]), which have directly resulted in Plaintiff not being able to purchase her first home due to the false credit reporting by Defendant.

JURISDICTION

2. Personal jurisdiction exists over Defendant as it has the necessary minimum contacts with the State of Alabama and this suit arises out of its specific conduct with Plaintiff in Alabama. All the actions described in this suit occurred in Alabama.
3. Subject matter jurisdiction exists under federal question jurisdiction (28 U.S.C. Section 1331).

VENUE

4. Venue is proper as Plaintiff lives in Alabama and the Defendant does business in this judicial district.

PARTIES

5. Plaintiff is a natural person who is a resident of Alabama.
6. Defendant Hyundai Capital America, Inc. d/b/a Kia Motors Finance (“Defendant” or “Kia”) is a foreign company that engages in the business of reporting consumer credit information to credit reporting agencies. It conducts business in this Judicial District. Its principal place of business is the State of California and it is incorporated in California.

FACTUAL ALLEGATIONS

Plaintiff purchases a 2012 Kia in 2012 with Gap insurance

7. On or about August 1, 2012, Plaintiff purchased a 2012 Kia from Kia and it was financed through Kia.
8. Plaintiff purchased, from Kia, Gap insurance that would pay the difference between the value of the car and the amount owed if the car was totaled.
Plaintiff’s 2012 Kia is wrecked and the loan is paid off
9. Several weeks later Plaintiff was in a wreck and the car was totaled.
10. Kia told Plaintiff it would handle the claim with the primary insurance company to recover the value of the 2012 Kia.
11. And Kia told Plaintiff it would file the Gap insurance to cover the “gap” in the value and the amount owed.
12. Kia took these actions and the loan was fully paid without any problem.
Plaintiff purchases a 2013 Kia with Gap insurance
13. Needing a vehicle as Plaintiff’s was totaled, on or about September 26, 2012, Plaintiff again took out a loan with Defendant Kia – this time on a 2013 Kia Forte.
14. Defendant Kia again sold to Plaintiff a "Gap" insurance, which would pay the difference or "gap" between the value of the Kia and the amount owed if the Kia was totaled.

Plaintiff’s 2013 Kia is totaled in a wreck in 2013

15. On October 21, 2013 Plaintiff wrecked the vehicle (2013 Kia) and Plaintiff's 2013 Kia was totaled.
16. Plaintiff promptly reported this to Kia and Kia said it would file the Gap insurance and it would get the primary insurance payment – exactly as had occurred one year before on the 2012 Kia.
17. Plaintiff's insurance paid Kia and the Gap insurance would pay the rest of the amount owed.
18 months later Plaintiff discovers Kia is falsely reporting
the 2013 Kia on Plaintiff’s credit reports
18. Plaintiff discovered the last week of May 2015, that Plaintiff's credit reports falsely showed balances of the whole amount owed when Plaintiff’s insurance had paid over $14,000 to Kia for the then value of the 2013 Kia at the time of the wreck.
19. The credit reports also showed that Kia was reporting that Plaintiff was late in payments since the wreck.

Plaintiff’s first dispute to the credit reporting agencies under the FCRA

20. Plaintiff disputed this to the credit reporting agencies and Defendant Kia corrected the credit reporting to show Plaintiff had not been late since the wreck and did not owe the full amount of the loan.

Plaintiff is looking to buy a home and discovers Kia
is still reporting the “gap” amount as owed

21. But Plaintiff noticed Kia was still reporting $5,401.00 owed, which was the amount the Gap insurance would pay.
22. Plaintiff had recently married (2015) and was looking at purchasing a home.
23. As a teacher, owning a home has been a life long dream of Plaintiff.
24. Part of preparing to purchase a home is to make sure that your credit reports are accurate.

Plaintiff calls Kia repeatedly to get her credit reporting fixed

25. Given the continued inaccuracy of Kia’s reporting (that a balance was owed), this led Plaintiff to not only do the Fair Credit Reporting Act disputes to the credit reporting agencies but also to talk to Kia directly.
26. Plaintiff contacted Kia on several occasions about this and Kia told Plaintiff that Kia had not filed the Gap insurance claim.
27. Defendant Kia promised to file the claim.
28. In the late summer of 2015, Defendant Kia told Plaintiff that it had filed the claim on the wrong Kia loan so the claim was denied.
29. Kia filed the Gap claim on the 2012 Kia, not the 2013 Kia.
30. But the 2012 Kia had already had a Gap claim filed and paid – in 2012.
31. Naturally, one cannot get double payment for the same vehicle.
32. Plaintiff again requested that Kia fix the false credit reporting showing she owed a balance – she owed no balance as Kia had sold her the Gap insurance, Kia financed it, and Kia promised to file the claim.
33. Kia then promised Plaintiff that Kia had corrected this to file it on the correct loan – the 2013 Kia loan.
34. Plaintiff told Kia Plaintiff was buying a house and had to have this corrected.

Kia knows Plaintiff does not owe any money on the 2013 Kia so it only attempts to force Plaintiff to pay this unowed money by false credit reporting

35. Despite Defendant Kia causing this issue with its refusal to file the Gap insurance claim on the right vehicle, even nearly two years after the wreck, Defendant Kia claims on Plaintiff's credit reports that she owes $5,401.00.
36. It is important to note that nowhere else does Kia claim Plaintiff owes any money on the 2013 Kia loan.
37. No bill has ever been sent to Plaintiff since the 2013 wreck.
38. No phone call has been made to Plaintiff requesting payment since the 2013 wreck.
39. When Plaintiff has had repeated (and frustrating) calls with Kia about this fiasco, no representative of Kia has ever said, stated, hinted, or even implied that Plaintiff owes any money on the 2013 Kia.
40. This is because Plaintiff owes no money on the 2013 Kia.
41. Plaintiff even purchased a new vehicle and, ironically, the dealership financed it through Defendant Kia.
42. This would never have happened if Plaintiff actually owed money on the 2013 Kia.
43. If Plaintiff really had an outstanding balance of over $5,000 that had been owed since October 2013, Kia would never have allowed Plaintiff to finance another Kia.
44. Plaintiff owes no money on the 2013 Kia – this is why Kia has again financed a car for Plaintiff.

Plaintiff disputes, again, the false credit reporting by sending a detailed letter with attachments to Kia and the credit reporting agencies

45. Plaintiff in November 2015 sent a very detailed dispute letter with many attachments to Kia, Equifax, Experian, and TransUnion, disputing the balance owed on the 2013 Kia and that it was an open account.
46. Plaintiff explained in great detail how the amount of the debt (current balance) and the monthly payments pushed her “debt to income” ratio beyond the point where she could qualify for her home loan.
47. Plaintiff informed Kia (and the credit reporting agencies) that she had a contract on the home she wanted to buy and the Kia reporting is the only reason she could not close on the home.
48. And that this impacted the sellers who had a contract to buy a house but could not do so until they sold their house to Plaintiff.
49. In short, Kia knew exactly what it was doing wrong and exactly the tremendous damage it was causing Plaintiff and others by its malicious decision to continue to falsely report the account on Plaintiff’s credit reports.
50. Kia received this dispute letter directly and has failed to even show the slightest courtesy in responding to Plaintiff.
51. No apology has come from anyone at Kia.
52. Kia has no regret over what it has done and is continuing to do to both Plaintiff’s family and the seller of the house Plaintiff wants to buy.
53. Nor to any realtor involved or mortgage company involved.
54. Kia’s policy and procedure, which will be established through its repeated conduct here and with other victims across the country, is to show no concern or regard for any of its wrongful actions, as it believes it is above the law in dealing with American consumers as opposed to the US government.
55. All involved (mortgage company, realtor for seller, Plaintiff) have tried to get Kia to fix the false credit reporting but have been stonewalled.
56. In response to the dispute letter, the credit reporting agencies contacted (individually) Kia to ask Kia whether to keep the balance owed and the open account status.
57. Kia, knowing full well the falseness of its reporting, instructed the credit reporting agencies to keep the false information on Plaintiff’s account.
58. Kia did this knowing it had destroyed the opportunity for Plaintiff to purchase her home.
59. Defendant Kia did not perform any type of reasonable investigation.
60. The credit reporting agencies properly notified Defendant Kia in accordance with the FCRA of the dispute by Plaintiff.
61. Defendant failed to properly investigate this dispute, as if Defendant Kia had properly investigated, the account would show that it is closed and nothing is owed.
62. The Defendant Kia was provided with more than sufficient information in the dispute and in its own internal sources of information to conduct an investigation and to conclude that the account complained of was being reported incorrectly.
63. Defendant Kia has promised through its subscriber agreements or contracts with the credit reporting agencies to accurately update accounts but Defendant Kia has willfully, maliciously, recklessly, wantonly, and/or negligently failed to follow this requirement as well as the requirements set forth under the FCRA, which has resulted in the intended consequences of this information remaining on Plaintiff's credit reports.
64. Defendant Kia maliciously, willfully, intentionally, recklessly, and/or negligently failed to review the information provided in the disputes and that was already in its files and to conduct a reasonable investigation on Plaintiff's disputes, which led as a direct result and consequence to all of the Defendant either failing to delete information found to be inaccurate, failing to replace the inaccurate information with accurate information, and/or reinserting the information without following the dictates of the FCRA.
65. One single example: If Defendant Kia had reasonable procedures in place in its investigation and reporting, it would have noticed the oddity of an account showing Plaintiff as owing $5,401.00 but not making any payments while simultaneously not reporting Plaintiff as late since the wreck and extending a new loan to Plaintiff.
66. If a human being with any concern over the solemn duty of credit reporting had looked at this, that human being would have known this was wrong and would have fixed the credit reporting.
67. But Kia does not allow its employees the “discretion” to fix blatant and damaging errors – instead there exists at Kia a systemic problem of refusing to allow errors to be corrected, even when the consumer makes repeated requests.
Plaintiff has been horribly damaged by Kia and cannot purchase her home
68. The conduct of the Defendant has proximately cause Plaintiff past and future monetary loss, past and future damage to Plaintiff’s credit worthiness, past and future mental distress and emotional anguish, and other damages that will be presented to the trier of fact.
69. Plaintiff reapplied for her home loan after the malicious conduct of Kia in refusing to fix her credit reports in response to the now second valid FCRA dispute.
70. Plaintiff was turned down for the sole reason of the Kia reporting.
71. As Kia knew and intended, Plaintiff has lost the ability to purchase a home.
Kia knows exactly what it has done to Plaintiff – all has been done
according to the plan of Kia
72. It is a practice of Defendant Kia to maliciously, willfully, recklessly, wantonly and/or negligently ignore and refuse to follow the requirements of the FCRA.
73. Defendant is a sophisticated business and it knows its conduct is wrong.
74. All actions taken by the Defendant were done with malice, were done willfully, and were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the FCRA and/or that it knew or should have known that its actions were in reckless disregard of the FCRA.
75. Defendant has engaged in a pattern and practice of wrongful and unlawful behavior with respect to accounts and consumer reports and as such Defendant is subject to punitive damages and statutory damages and all other appropriate measures to punish and deter similar future conduct by these Defendant and similar companies.
76. Defendant is liable to Plaintiff through the doctrine of Respondeat Superior for the wrongful, intentional and negligent acts, errors, and omissions done in violation of federal law by its employees and agents.

CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE FAIR CREDIT REPORTING ACT
15 U.S.C. § 1681 et seq.

77. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
78. Defendant Kia is an entity that, regularly and in the course of business, furnishes information to one or more consumer reporting agencies about its transactions or experiences with any consumer and therefore constitutes a "furnisher," as codified at 15 U.S.C. § 1681s-2.
79. Plaintiff notified the credit reporting agencies directly of a dispute on the Defendant Kia account's completeness and/or accuracy, as reported.
80. The credit reporting agency properly notified Defendant Kia of Plaintiff's dispute in accordance with the FCRA requirements.
81. Plaintiff also directly notified Kia of her dispute and provided all documents so Kia cannot argue it did not have its own internal documents – which it has had at all times – as Plaintiff sent them to Kia.
82. Kia has its own file of the conversations, notes, memos, etc. showing that this account is paid in full.
83. And the credit reporting agencies sent the appropriate documentation to Kia.
84. Defendant failed to delete information found to be inaccurate, reinserted the information without following the FCRA, or failed to properly investigate Plaintiff's disputes.
85. Plaintiff alleges that Defendant failed to conduct a proper and lawful reinvestigation.
86. All actions taken by the Defendant were done with malice, were done willfully, and were done with either the desire to harm Plaintiff and/or with the knowledge that its actions would very likely harm Plaintiff and/or that its actions were taken in violation of the FCRA and/or that it knew or should have known that its actions were in reckless disregard of the FCRA.
87. All of the violations of the FCRA proximately caused the injuries and damages set forth in this Complaint.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that judgment be entered against Defendant for all damages allowable (including statutory, actual, compensatory, nominal and punitive the total of which Plaintiff claims more than $75,000.00), costs, expenses, fees, injunctive relief to prevent further violations, and for such other and further relief as may be just and proper.

Respectfully Submitted,


John G. Watts (ASB-5819-t82j)
M. Stan Herring (ASB-1074-n72m)
Watts & Herring, LLC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattsherring.com
stan@wattsherring.com
Attorneys for Plaintiff


PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.


Attorney for Plaintiff

Serve defendant via certified mail at the following address:

Hyundai Capital America, Inc.
d/b/a Kia Motors Finance
c/o National Registered Agents, Inc.
2 N. Jackson Street, Suite 605
Montgomery, Alabama 36104

March 22, 2016

Sued by a debt collector: can we do consultation over the phone?

A natural question is do you have to come to one of our offices or can we do the consultation by phone?

Either way is fine but most folks do it by phone (or video). This saves you time as you don't have to get time off of work, etc. and come see us -- instead we do a 20-30 minute phone call.

We'll have the court paperwork in front of us and you can email us any credit reports or other documents we need to see.

This way you can get answers to any questions you have and not waste your time. I'm amazed in 2016 how many professionals (doctors, lawyers, accountants, etc) refuse to do things by phone and instead insist on making their clients/patients come see them in person when it is not needed.

We hope you find this and the other posts in this series helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

March 22, 2016

Sued by a debt collector: welcome to our series of posts and videos....

We have a total of eleven articles (including this one) about the process of being sued by a debt collector in Alabama and hiring us to represent you. These blog posts are for our clients but we often have questions by lawyers and other consumers how we handle various parts of the defense of a debt collection suit so we are making this public.

We hope this is helpful to you.

Here is what we will cover (we'll make each of these a hyperlink when we add each post):

1. Do I need to come to your office or can we do a consultation over the phone?

2. How do I hire you to defend me in a debt collection suit?

3. How do you file my Answer to the lawsuit and how do I get a copy?

4. What happens after you file my Answer for me?

5. If the case does not settle, do I need to be at trial?

6. What happens when we settle the debt collection suit against me?

7. What is a settlement agreement in the debt collection case?

8. What is the motion to dismiss with prejudice?

9. What happens after the debt collector dismisses my case with prejudice?

10. Why should I pull my credit reports 90 days after my case is dismissed with prejudice?

We hope you find these helpful and if we can help you, feel free to call us at 205-879-2447 or click on the red button below and we'll get right with you.

Click Here To Get Help Now

Thanks!

John Watts

January 26, 2016

What does an FDCPA lawyer do for consumers like you?

FDCPA lawyers help stop abusive debt collectors from harassing you -- the best way to do this is to sue the lawbreaking collectors and make them pay you money damages.

"So what is the FDCPA?"
FDCPA stands for the Fair Debt Collection Practices Act. This is a federal law passed in the 1970s to stop abusive debt collectors.

The law was passed and continues to be on the books because so many collectors violate the law and this is unfair for two reasons.

First, it is unfair to consumers as people with access to our credit reports, credit information, personal financial information, etc. should not be allowed to harass us. We'll talk about some examples later in this article.

Second, it is unfair for abusive collectors to operate in the marketplace because it hurts the law abiding honorable debt collectors. The ones that follow the rules are at a competitive disadvantage to those collectors who break the law. Imagine a football game where one team often has 12 or 13 players on the field at one time. That's an advantage but it also is called cheating and there is a price to pay.

"Do collectors really break the law?"
Yes.

The slightly longer answer is that because breaking the law gives a competitive advantage in the marketplace, many collectors give in to the temptation to cheat because it means higher profits and it hurts their competition.

So a for profit business naturally and rightfully wants to increase profits. Nothing wrong with this.

And if increasing profits causes your competitors to lose business or even go out of business, then that's considered a nice bonus.

Abusive debt collectors are not normally abusive just because they hate consumers. It usually is not "personal" -- it is just a business owner creating an environment where the business happily breaks the law to make more money.

It just so happens that in doing this, consumers are abused.

"What are some examples of debt collectors breaking the law?"
The two basic rules for debt collectors are:

First, don't lie to consumers.

Second, don't be unfair or harassing to consumers.

Examples of lying to consumers:
**Suing you for $7,000 when you owe nothing to the debt buyer (LVNV, Midland, Portfolio, etc).
**Telling you that you will be sued when the collector has no intention of suing you
**Telling you that you will be garnished when there is no basis to garnish you
**Telling you that you can't "dispute" a debt
**Lying to you by saying the collection account will never come off of your credit reports
**Lying about how you cannot file bankruptcy anymore
**Telling you that you owe a certain amount on your mortgage when you owe a lesser amount

Examples of unfair or harassing conduct:
**Suing you after the statute of limitations has expired
**Calling your neighbors or family members (other than your spouse)
**Calling your co-workers
**Using profanity or racial slurs against you
**Garnishing you when there is no right to garnish
**Suing you for an amount that you don't owe

As you can see, a lot of times conduct can be a lie and can also be unfair/harassing.

"What can I get by suing under the FDCPA?"
When you sue an abusive debt collector in federal court, you can get the following:
1. Statutory damages of up to $1,000
2. Actual damages to compensate you for any economic losses or emotional distress
3. Costs of filing and prosecuting the lawsuit
4. Attorney fees

"Should I do this on my own or hire a lawyer?"
Sometimes folks think it would be cheaper to not hire an attorney. But unlike a lot of other types of cases, you don't pay us any money to file your lawsuit.

And we only get paid if we win the case -- either a judgment or a settlement. Remember also that the debt collector can be forced to pay our attorney fee. Usually this is worked into the settlement as the collectors know that our hourly rate is $400 an hour as I'm writing this now.

This causes collectors to have to decide if they want to fight or if they want to settle. If they fight, and they know they will lose, the price of the case will go up every step of the way because of the attorney fees.

The other factor is that you will be in federal court -- most trial attorneys are not even comfortable in federal court due to the complexity of the rules. So if you, as a non lawyer, want to represent yourself then you must be prepared to know the rules.

"If I want to know more about my options, what should I do now?"
Give us a call at 205-879-2447 and we'll be happy to help you think through your options.

There is, of course, no obligation to hire us and no fee for us to speak.

Let's talk about your options and what is the best approach for you to take with the debt collector you are dealing with....

Normally it is suing them which puts money in your pocket, discourages bad behavior in general and certainly makes the collector leave you alone. Overall, very good things happen when we sue the bad guys.

I look forward to speaking to you -- call us at 205-879-2447.

John G. Watts