If you would like to connect with me on these sites, click on the following links and they should take you to my pages.
I look forward to hearing from you....
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Justia is a wonderful website that contains a tremendous amount of information about the law. I recently put up a profile on Justia that you might find useful - it has contact information and a map to my office as well other useful information. I hope this is helpful to you.
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We recently ran across a good blog by Richard Collins - the Alabama Bankruptcy Blog. Check this out - Richard has some very interesting blog posts on here relating to Alabama bankruptcy law.
There is a lot of mis-information about bankruptcy floating around and we noticed Richard has published a book entitled "Bankruptcy Myths" that we plan on requesting. If you are considering bankruptcy this would be an excellent place to start.
We wish Richard all the success in the world.
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Pay day loans are almost always bad for consumers - in part because if you do business with people who will charge the types of outrageous rates that pay day lenders charge you can expect that they will violate laws when it comes time to collect the debt. The FTC has a special report out on pay day loans - we highly recommend that you read it. Here is an excerpt:
A payday loan — that is, a cash advance secured by a personal check or paid by electronic transfer is very expensive credit. How expensive? Say you need to borrow $100 for two weeks. You write a personal check for $115, with $15 the fee to borrow the money. The check casher or payday lender agrees to hold your check until your next payday. When that day comes around, either the lender deposits the check and you redeem it by paying the $115 in cash, or you roll-over the loan and are charged $15 more to extend the financing for 14 more days. If you agree to electronic payments instead of a check, here’s what would happen on your next payday: the company would debit the full amount of the loan from your checking account electronically, or extend the loan for an additional $15. The cost of the initial $100 loan is a $15 finance charge and an annual percentage rate of 391 percent. If you roll-over the loan three times, the finance charge would climb to $60 to borrow the $100.
If you are dealing with a pay day loan and have questions or if you are dealing with harassment from the pay day lender or the pay day lender's collection agency, let us know and we will be glad to help you understand your options.
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We discussed yesterday why it is not a good idea to wait on filing your answer until you are served as this exposes you to the danger of a default judgment. But if you already have a default judgment against you from a collection lawsuit filed by a debt buyer (Midland, LVNV, Asset Acceptance, Palisades, etc) then what are your options?
One option is to settle with the debt buyer. Debt buyers in Alabama are usually represented by Zarzaur & Schwartz, Nathan & Nathan, Nadler & Associates, Parnell & Crum or Angie Ingram. These collection lawyers are very experienced at settling cases and making payment arrangements with you.
But if you were not properly served then you may not feel like paying money to a debt buyer that often cannot or will not prove its case against you. The other option is to ask the court to overturn, or set aside, or vacate the default judgment against you.
We have had several instances recently where this was necessary for our clients and we have been very successful in getting improper default judgments set aside. This is because we are very strict on when we will accept cases involving default judgments.
First, you must be able to show that you were not served. This is true when, for example, the place the court shows you being served is not your address. Maybe you lived there when growing up but you now live in another city. Or, as our friend Whitney Seals experienced, maybe you were out of state in a hospital when you were allegedly served. Whatever the situation, you need to show you were not served.
Second, if you were served, then you have to provide a very good explanation to the court as to why you did not answer. This could be, for example, you were in the hospital and just got home when you were served and did not have your full faculties about you and did not understand what the lawsuit meant or the deadline to answer.
Third, the timing of filing a motion to set aside the default judgment must occur as soon as possible after the default judgment or after you find out about the default judgment. You never want to approach a court after sitting on your hands for a long time and then expect the court to give you a chance to have a trial.
Fourth, whatever you say is your reason for not answering the suit (never served or you have a good reason for why you did not answer), you need to be able to offer independent evidence. If you say you lived somewhere else, attach the lease agreement. Attach copies of power bills showing the other address. We had one client, who set aside a very large verdict, who got the gas company to send a letter verifying that he had service at an address that was different than where he was allegedly served. Having this type of evidence which shows from a third party that you were not living at the address where you were allegedly served helps show the court the truth of what you are arguing.
Fifth, you need a valid defense to the case. If you have no defense and are going to lose anyway, what's the point of setting the judgment aside? In the case of a debt buyer lawsuit, its hard to imagine not having a valid defense since we have yet to see a debt buyer prove it owns the debt. Certainly the debt buyers have never shown us the contracts and all the amendments to the contract in order to prove a breach of contract. But whatever your defense is, you need to be able to explain what it is to the court in your papers asking the judgment be set aside. You don't have to prove you will win but you do have to show you have a legitimate (or "colorable" as the cases say) defense.
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We are often asked this question by people who have been sued by debt buyers such as Midland, Asset Acceptance, Unifund, LVNV, and a host of other debt buyers. They may have been previously contacted by collection law-firms such as Zarzaur & Schwartz, Nathan & Nathan or others or they may have found out about the lawsuit by getting letters from lawyers offering to help. However they found out, the question is whether it is better to wait until they are actually served or is it better to go ahead and answer the complaint?
Normally we think it is better to go ahead and answer the complaint. We have talked to a number of Alabama consumers who have been sued but not yet served who decide to wait. Then they receive notice from their work that their wages are being garnished or they realize they have bounced checks as their bank account is wiped out due to a garnishment. They are stunned that the court has issued a judgment against them because they did not answer after allegedly being served.
Being served must happen for a judgment to be proper and stand (we have set aside a number of judgments where there was not proper service but it can be difficult) but it is proper to leave the papers with an adult at your house. Even if that adult doesn't tell you about the suit. Sometimes the person who is serving the papers serves the wrong person or wrong house but the court thinks you have been served and so a default judgment is entered. Or you may have been served but had something else going on in your life and just did not take note of the seriousness of the lawsuit.
For us (or any lawyer we know about) to move the court to set aside the judgment will cost you more money because of the work it requires. And we only do this when we are convinced that you were never served. The court has some discretion in what to do so you cannot count on the judgment being set aside.
If you wait, then you will need to monitor your case to see if you have been served. You should call the clerks office every week or so to find out. Otherwise you may be surprised with a garnishment.
Bottom line - you have to decide if it is in your best interest to file an answer and have certainty that you will not be hit with a default judgment or if you prefer the uncertainty of constantly wondering if the court thinks you have been served.
We will be glad to meet with you and discuss your situation if you live in Montgomery County to Madison County, Alabama.
We also have a video that you might enjoy that discusses the critical need to answer the lawsuit in a timely manner:
You can also request our free report on the Five Secrets Debt Buyers Don't Want You To Know When They Sue You by calling us at 205-879-2447, filling out the contact sheet on this blog, or filling out the form below:
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On our personal injury blog - Birmingham Injury Blog - we discussed "Contributory Negligence" in the context of a car wreck or truck wreck lawsuit. We are asked how this applies to consumer litigation claims.
Often we bring state law claims under Alabama law when we file suit for Alabama consumers. These laws include defamation, invasion of privacy, malicious conduct, and negligence. When negligence is pled, defendants will often raise the defense of contributory negligence which basically means if you are at fault in even the slightest, your claim can be barred. There are exceptions but this gives you the general idea.
So if you have brought a consumer claim and wonder why the defendant pled contributory negligence just understand the defendant is arguing that you did something wrong and that should bar your Alabama state law negligence claim.
If you have not yet filed a lawsuit and believe a debt collector, mortgage service provider or credit reporting agency has violated not only federal but also state law, please feel free to contact us for a free consultation.
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Our friend Denise Richardson who runs the site Give Me Back My Credit was down for a bit due to attacks but is now back up and running better than before. This site is a wonderful resource for identity theft issues, collection agency abuse, and credit reporting errors. Please make sure you subscribe to her site or visit there often.
Keep up the good work Denise!
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The short answer is no one truly knows the future but our best judgment is that we will see a marked increase in the amount of violations of both the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. The reason is simple - consumers have less money to spend on everything. So when faced with a choice of spending money on paying collection agencies (particularly debt buyers who have bought old debts for pennies on the dollar and can't prove they own the debt anyway) or paying for food, gas, heating, etc. the collectors come out on the short end of the stick.
Therefore, debt collectors will most likely increase the pressure on consumers to get the attention (and dollars) of the consumer. Given the fewer dollars to spend, the ready access to voicemail and caller id, the way that abusive collectors will get the attention and money of a consumer is by serious violations of the law.
Calling neighbors to have a so-called "block party" to embarrass you. Calling co-workers (an "office party") to frighten you into payment. Calling family members - nothing like your mother asking you if you are ok and if you are going to be arrested because a debt collector has threatened you through her....
The second primary way to get your attention and money is by putting false information on your credit reports. Even if you don't owe the account, having a collection or debt buyer account can trash your credit score. I know a lawyer (who sues companies) who was told by a collector "Yeah its false but it will take you a year to get it off your report so why don't you pay the $5000 and you'll be able to close on your new house". The lawyer paid it. The collector was lucky because this lawyer could have (and should have) sued the company after disputing this false debt but he chose not to. For most of us, though, we can't just ignore false things and then later pay $5,000 to make them go away. Suing after disputing the false items with the credit reporting agencies is the best choice normally.
Finally, the debt collectors will be suing even more often in Alabama than ever before. If you get any hint that you have been sued, protect yourself by calling the court where you live to see if there is a suit pending against you. Or contact us and we can check in the Alabama court system to see if a lawsuit is pending against you. The critical thing is to answer (and normally deny) the complaint. Make the debt buyer prove it owns the debt (we have never seen this happen yet) and that you owe the debt to the debt buyer (haven't seen this either). These debt buyers base their whole business model on getting default judgments. Oddly, when you beat them they don't seem to understand what a judgement against them means as they normally will not correct your credit reports. If this happens, sue them.
There are other ways abusive debt collectors will attack you but these three (third party contacts, false credit reporting, and filing frivolous lawsuits) will be the most common tactics you will face in the coming year. Gain knowledge. Protect yourself. Contact us for a free consultation for any questions you have. We are here to help you.
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