Avvo is a wonderful site to find information about lawyers and to ask legal questions. I was interviewed by Avvo about the startling revelations that mortgage companies are signing thousands of affidavits a month -- by one person -- and the affidavits are bogus in that they are not based upon personal knowledge. Instead these robo-signers are merely checking their name and then signing it -- knowing that these bogus affidavits will result in thousands of people losing their homes to foreclosure.
If you live in Alabama and have questions about an upcoming foreclosure or a foreclosure that has already happened, feel free to contact us through this blog, our website, or by picking up the phone and calling 205-879-2447. We have a paralegal who only works on our foreclosure cases and she will discuss your situation with you and can set up an in person consultation at our office.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
The New York Times has posted an article that discusses how the actual number of delinquent mortgage payments among homeowners has actually started to decrease, even amid the foreclosure fighting that has been happening.
David Streitfeld, writer of the article, says that households who were behind on mortgage payments fell during this year's 3rd quarter from 14.42% to 13.52%. This is the lowest delinquency percentage since the housing crisis began in early 2009.
One reason delinquencies declined during the summer months was because banks reduced the numbers by offering loan modifications to some homeowners and not others. Mortgages that were delinquent 3 or more months fell from 9.11% to 8.70%.
Even with this encouraging drop, the number of foreclosures and delinquent mortgages is still above average. Foreclosures are no longer being caused by bad loans, which was responsible for a large part of the recession. Fixed rate loans, which are the "safest" type of loan, represented 36% of new foreclosures in the 3rd quarter, which is a rise from 30% of the same quarter last year. However, foreclosures from the worst kind of loan (adjustable subprime) have sharply decreased.
Elizabeth A. Duke, a Federal Reserve Board governor, said in her testimony that the central bank expected about 2.25 million foreclosure filings this year and in 2011, and two million more in 2012.
“They will remain extremely high by historical standards,” Ms. Duke said in her prepared testimony. In 2006, before the collapse, there were about one million foreclosures a year.
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Alabama consumers are facing foreclosures at a record pace -- some are legitimate but many foreclosures are illegal and should be stopped or undone if they have already occurred.
If you are facing a foreclosure in Alabama, how can you stop it? [We'll address in a future post about how to undo a foreclosure that has already happened.]
First, if the mortgage company has illegally started foreclosure proceedings, you can often sue your mortgage company. Sometimes it is good to file a "Temporary Restraining Order" (TRO) to stop the foreclosure but we have found in our cases in Alabama that this is not necessary.
We file the lawsuit and send a copy to the foreclosure lawyer (most foreclosures are handled by Sirote & Permutt) and tell them they can do whatever they want. They understand the clear implication: The foreclosure is wrongful and if you go forward with it you will magnify the damages as you have now been warned.
The foreclosures have been stopped because the mortgage companies know we would argue for punitive damages and high compensatory damages based upon their refusal to stop the foreclosure. So they do their best to take away our arguments. We have plenty of others but when they stop the foreclosure it helps our clients.
A second option is to file bankruptcy -- normally chapter 13 bankruptcy which will normally stop the foreclosure and let you make payments into court. But keep in mind that normally you will need to continue to make your normal mortgage payments and make payments into court on the back amount you owe so this is something you need to discuss with a bankruptcy lawyer to see if this is practical for you to do.
Your final practical option to stop a foreclosure (we'll talk about short sales, etc. in another post) is to obtain a loan modification with the mortgage company. These, unfortunately, are fairly rare and most of our mortgage fraud cases arise out of lies regarding modifications. If you are discussing a loan modification, protect yourself.
Document every phone call. If you want to record the phone calls, make sure you have permission to do so. But at least write down every call. Every detail. How long you were on hold. What was said. What was promised.
We have filed dozens of wrongful foreclosure cases (you can read some here) related to promises to stop or cancel or postpone the foreclosure but then the mortgage company forecloses anyway so you need to protect yourself by making sure you document everything to discourage the mortgage company from lying to you.
If you live in Alabama and have questions about an upcoming foreclosure or a foreclosure that has already happened, feel free to contact us through this blog, our website, or by picking up the phone and calling 205-879-2447. We have a paralegal who only works on our foreclosure cases and she will discuss your situation with you and can set up an in person consultation at our office.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
You are shocked to find out there is a bogus collection account against you for a hundred bucks. Or it is legitimate but the collection agency collectors are harassing you over this. They are calling your neighbors or leaving illegal voicemails, etc.
Why would they risk doing this knowing they could be sued? Is it really worth the little bit of money they will make?
These questions are reasonable ones and they also are arguments that debt collectors make when they have been sued. They say "Do you really think we would do this bad stuff to make $20?"
The answer is YES they will break the law for small debts. Let's think about this for a moment.
Walmart is one of the richest and most profitable companies around -- but its profit margin is very small as it sells items as cheaply as possible. So how does it make money? Volume.
Same thing with debt collectors. They make as much money collecting 10 accounts at $50 each as they do with one account at $500.
So, if you are in this situation of being harassed -- particularly over a bogus debt that you do not owe -- then learn about your rights. You can request, for free, our book on Stopping Abusive Debt Collectors.
After you learn about your rights, take action. Get with a consumer lawyer in your state to see what the appropriate action is for your situation.
If you have had problems with debt collectors, or have been harassed by one, and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
The Bankruptcy Law Network has posted an article that discusses how it's possible for you to do away with both a first and second mortgage on an underwater home by filing for Chapter 13 bankruptcy before the home is sold as a foreclosure.
Once the first mortgage company takes the property, the lender of the second mortgage can choose to sell the debt to a collection agency who can then harass the homeowner or file a lawsuit or a 1099 form with the IRS.
The best way for an underwater homeowner to protect their assets is to file Chapter 13 before the home is sold by the bank. By filing Chapter 13 bankruptcy you can choose and option that will surrender the house to both the first and second mortgage holders. This prevents the second mortgage lender from filing a deficiency claim because the house hasn't been liquidated. The deadline for the second mortgage lender to claim stake in the liquidation is much earlier than when the actual liquidation takes place. Chapter 13 allows struggling homeowners "to bring a swift and satisfactory conclusion to an otherwise uncertain financial predicament."
This plan of action works particularly well for people who don't a lot of other debt because...
a 100% plan can be proposed that will pay 100% to all unsecured creditors. Having a “100% plan” in Chapter 13 is like slipping the maître d’ $100 for the best table in the restaurant. Everyone treats you like gold because you’re paying all creditors 100% – technically, even the 2nd mortgage by surrendering the real property in full satisfaction of the debt.
You can even still fight the foreclosure because when you surrender "collateral" you're really surrendering the "owner and holder note of the mortgage." Chip Parker, a Florida bankruptcy attorney and writer of the article, says that in Florida (where judicial foreclosures are practiced) the mortgage holder must present its case in state court before the debtor can be evicted from the property.
However, since the homeowner has filed a bankruptcy, much of the downside risk involved in fighting the foreclosure is eliminated. At best, the mortgage servicer can ONLY get the property. It cannot collect any money from the homeowner.
If you have further questions or concerns about foreclosure or bankruptcy, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Many Alabama consumers are shocked to learn, in the last several months, that their credit reports have been trashed by a collection account with National Credit Solutions, a collection agency out of Oklahoma. The amount is usually around a hundred dollars and it is allegedly for a Movie Gallery rental.
Movie Gallery is no more. One reason is the shoddy system for taking rentals -- usually all you had to do was provide the last four digits of the telephone number and "POOF" the movie was yours to take home. The problem is Movie Galleries were often in smaller areas where it was the only rental place in town so anyone could go in and rent a movie in your name as it was likely you had an account there.
So what do you do if suddenly National Credit Solutions, or some other collection agency that claims to be collecting for Movie Gallery, shows up on your credit reports?
If you owe it, pay it. You should always pay the bills that you owe.
If you don't owe it, then fight it. Collection agencies love to say "Look, it will be easier for you to just pay it even if you don't owe it. We can't prove you owe it but we will destroy your credit until you pay it. So, how would you like to pay it now?"
Dispute with National Credit Solutions (or whoever the debt collector is) and tell them, in writing (certified mail), you don't owe Movie Gallery or them any money and they need to prove to you that you do. You want the account (the "tradeline") off of your credit report and you don't want them to call you on your cell phone (and give them your cell phone so they won't).
If this account is still on your reports after you get back the "results of investigation" then look into suing National Credit Solutions or the other collection agency that is putting information on your credit reports that is not accurate. The suit normally will be based upon the Fair Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA).
This will help collection agencies understand that, at least for you, it was a poor business decision to put a bogus account on your credit reports for $100 when they will end up paying thousands of dollars and removing it the account when they are sued successfully.
Best wishes with this and if you live in Alabama and have any further questions, please feel free to contact me through this blog or through my website or call me at 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
CreditSlips.org has posted an article about what Alan White, author of the article, refers to as "erroneous foreclosures." It's generally assumed that when a homeowner goes into foreclosure that they are behind on their mortgage, so shouldn't they have seen the foreclosure coming?
The answer to this question comes in two parts:
1) No.
2) Even homeowners who are indeed delinquent should not be foreclosed in the current housing market if any reasonable workout is possible.
These erroneous foreclosures can come in two types: paperwork, payment errors or other mishaps that are clearly the lender's error, or foreclosing on a homeowner whose income would allow them to keep their home if they were granted a loan modification. However, modification proceedings usually begin at the same time the foreclosure is processed and most of the time the foreclosure is conveniently finished being processed first.
The clearest evidence of widespread errors and poor performance in mortgage servicing comes from data on HAMP and other modification programs. The modification and robosigning issues intersect most clearly in the frequent cases (now the subject of several class actions) where borrowers making payments under temporary or permanent HAMP mods are foreclosed. In those cases, affidavits of default are necessarily false.
A HAMP report from February of this year shows that there were 36,000 complaints regarding lost paperwork, lack of communication with lenders/servicers, and "inappropriate requests for modification fees." The Treasury's rule requires that homeowners seeking a modification be contacted by the servicer within 30 days, however, the average time span for completing a modification is as long as 14 months.
We can also infer high error rates from the fact that by any reasonable measure some banks and servicers are doing far more than others, given their numbers of defaulted mortgages, to work out and modify mortgages. In other words, some servicers are likely engaging in unnecessary foreclosures, and have NOT exhausted all alternatives before proceeding. For example, conversion rates from temporary mods to permanent mods vary from 60% to 24% (BankofAmerica). The percentage of 3-month trial mods more than four months old is as high as 50% (BankofAmerica).
If servicers were taking the time to explore all possible options before jumping to foreclose, these percentages could be slashed. Also, the Treasury says that if servicers were following all the guidelines and judging between preventable and inevitable foreclosures then there wouldn't be such differences in their percentage reporting.
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Who Is A Debt Collector?
Any company that is assigned or that buys a debt that is in default the first time the company obtains the debt. This means that if your mortgage servicer (BAC Home Loan, Wells Fargo, Chase, Green Tree, etc) obtained the loan after it was in default (i.e. you were late), then normally it will be considered a debt collector.
If the alleged “owner” of the loan (a trustee such as Bank of New York, Deutsche Bank, etc) obtained the loan after it was in default – quite common in Alabama foreclosure cases – then the owner is considered a debt collector.
If the foreclosure lawfirm (Sirote & Permutt, etc) sends you a letter demanding payment of the loan, then it normally will be considered a debt collector also.
What Does It Matter If A Company Is A “Debt Collector”?
If the company you are dealing with is a debt collector, several important things happen.
First, the company cannot in any way lie or misrepresent anything to you. Now, Alabama law prohibits this as well but the FDCPA is not as strict as Alabama state law and the damages can be better.
Second, the company cannot threaten you with anything that it either cannot, or will not, actually do. So if the company threatens you with a foreclosure when it has no legal right to do so, this violates the FDCPA.
Third, there can be no bogus fees or charges or expenses added to what you owe or else the FDCPA is violated. We often see this with the inspection fees, BPO fees, and improper crediting of payments resulting in late fees.
Fourth, all communications to you have to have the warning that the communication (letter, call, email, etc) is from a “debt collector” and that this is an “attempt to collect a debt.”
Fifth, the debt collector cannot report false or inaccurate credit information about you to the credit reporting agencies such as Equifax, Experian, Innovis or Trans Union.
Finally, the FDCPA prohibits debt collectors from harassing you or treating you unfairly. They can still collect, but they can’t mistreat you.
OK, So The FDCPA Applies And Prohibts Certain Practices – So What?
Here’s what you get when the FDCPA applies:
1. Normally it is a strict liability law which means you don’t have to prove intent or negligence to show a violation . . . instead you simply show the violation. There are exceptions – such as misrepresentation and false credit reporting but for the most part the FDCPA is a strict liability statute.
2. You can receive up to $1000 in “statutory damages” even if you do not have any actual damages. In a foreclosure case this would be rare to not have actual damages but you don’t have to have them.
3. You can receive your full “actual damages” – what the jury decides the violation of the FDCPA caused you.
4. Your lawyer can receive attorney fees and litigation expenses which can increase the amount of any settlement or verdict that you keep.
How Does The Defendant Paying Legal Fees At The End Of The Case Help Me Save My Home?
It helps you because it makes the Defendant/Mortgage Company think twice about dragging out the litigation because it knows that if it loses, it will have to pay your attorney for the time spent on the case. At the time of this writing, our hourly rate according to Federal Judges in Alabama is $350 per hour. So a mortgage company takes a big chance if it wants to drag out litigation. A case we recently tried under the FDCPA that was much easier and less complicated than a foreclosure case resulted in $125,000 in fees by the end of the four day trial.
The mortgage company has to seriously think about this before deciding to not settle in a reasonable manner when it knows it has been caught violating the law.
What’s The Bottom Line To The FDCPA Applying In Foreclosure Cases?
Mortgage companies are subject to a stricter law than Alabama law. Mortgage companies face a much higher liability when you consider the FDCPA fee shifting statute.
This adds up to the mortgage company normally being more willing to try to make their wrongs right as it is in the mortgage company’s financial self interest to resolve these cases earlier, rather than fighting them all the way to trial.
And if the mortgage company will not resolve the case when it has been caught doing wrong? With the FDCPA you have the best chance to recover your damages and maybe even have your lawyer fees paid. By the mortgage company. Now that is poetic justice….
Contact Us If You Have Questions About Your Alabama Foreclosure Situation
We are sorry but if you live outside of Alabama we cannot speak with you. We have so many Alabama citizens that need help that we have to focus our time on individual consumers that we can help as we are not licensed outside of Alabama.
If you live in Alabama and want a brief phone conversation or if you want to set up a formal consultation in our office, please contact us through this website or through our blog here or by picking up the phone and calling us at 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Debt collectors do not like giving full disclosures because it can expose them to suit for illegally disclosing to a third party that the collector is collecting a debt. So . . . they don't want that but they still want to leave a message.
What to do?
The collector's argument is "We have to break one section of the law to avoid breaking another section" -- that is as stupid as it sounds. But that's what they do.
Here is a recent case we filed against United Recovery Systems, LP for allegedly failing to give proper disclosures (sometimes called the "Mini Miranda"):
COMPLAINT
COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the United Recovery states as follows:
1. This action arises out of United Recovery’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and out of the invasions of Plaintiff’s personal and financial privacy by the United Recovery and its agents in their illegal efforts to collect a consumer debt from Plaintiff.
PARTIES
2. Plaintiff Steven McCartey (hereinafter “Plaintiff”) is a natural person who is a resident of Alabama.
3. United Recovery Systems, LP, (“United Recovery”) is a foreign debt collection firm that engages in the business of debt collection. Its principal place of business is in the State of Texas and it is incorporated in Texas.
FACTUAL ALLEGATIONS
4. Plaintiff allegedly incurred a financial obligation that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
5. United Recovery made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
6. United Recovery refused to give all disclosures as required when leaving voicemails in its efforts to collecting the debt.
7. United Recovery refused to send required notices to Plaintiff in its collection efforts.
8. Plaintiff never gave United Recovery permission to call Plaintiff’s cell phone.
9. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying United Recovery.
SUMMARY
10. All of the above-described collection communications made to Plaintiff by United Recovery and collection agents of United Recovery was made in violation of the FDCPA.
11. The above-detailed conduct by this United Recovery of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
12. This series of abusive collection calls by United Recovery and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
13. United Recovery’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
14. Plaintiff has suffered actual damages as a result of these illegal collection communications by this United Recovery in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
NEGLIGENT AND WANTON HIRING AND SUPERVISION
15. United Recovery negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
16. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
17. The acts and omissions of United Recovery and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff, including the failure to give the required disclosures.
18. As a result of United Recovery’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from United Recovery.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
19. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
20. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and United Recovery violated Alabama state law as described in this Complaint.
21. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings: 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.
15 U.S.C. § 1692(a) (emphasis added).
22. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.
15 U.S.C. § 6801(a) (emphasis added).
23. United Recovery and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
24. United Recovery and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
25. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
26. The conduct of this United Recovery and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this United Recovery which occurred in a way that would be highly offensive to a reasonable person in that position.
27. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from United Recovery.
28. All acts of United Recovery and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such United Recovery is subject to punitive damages.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
29. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
30. United Recovery negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
31. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
32. United Recovery acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
33. United Recovery violated all of the duties United Recovery had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
34. It was foreseeable, and United Recovery did in fact foresee it, the actions of the United Recovery would lead and did lead to the exact type of harm suffered by Plaintiff.
35. United Recovery acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
36. United Recovery invaded the privacy of Plaintiff as set forth in Alabama law.
37. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
38. As a result of this conduct, action, and inaction of United Recovery, Plaintiff has suffered damage as set forth in this Complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against United Recovery for $10,000:
COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against United Recovery;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against United Recovery;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against United Recovery; and
• for such other and further relief as may be just and proper.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
• for an award of actual damages from United Recovery for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
Serve United Recovery via certified mail at the following addresses:
United Recovery Systems, LP
c/o Douglas B. Schultz
5800 North Course Drive
Houston, Texas 77072
2. Thinking that judges know about all of the bogus collection suits so the default judgment doesn't mean anything. It means everything . . . it means you have a judgment against you.
3. Fantasizing that the collection lawers (Zarzaur, Nadler, Nathan, Holloway & Moxley, Ingram, etc) won't really garnish your wages with a collection judgment. They will . . . they are masters at finding your money and taking it and when they have a judgment they have the right to do that....
4. Hallucinating that the judge will make the collector or debt buyer prove they own the debt before garnishing your wages when you have ignored the lawsuit and received a default judgment. After the judgment it is a done deal.
5. Repeating over and over to yourself that "I'll pay when they prove they own the debt or that I owe the debt" -- uhmmmm..... that happened in the judgment!
There are ways to defeat a default judgment (here is one example) but you need to get with a lawyer ASAP so you can articulate your valid defense, why you allowed a default judgment to occur against you, and you need to take immediate action as there are strict deadlines. Do all of this and you have a chance to overcome it.
Just pretending or dreaming or hallucinating one of the five things above? Not a chance.
If you have had problems with debt collectors, or have been harassed by one, and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
You can receive our free report on The Five Secrets Debt Buyers Don't Want You To Know About When They Sue You In Alabama by filling out the form below.
The California Credit Law Blog has posted an article, originally from the Wall Street Journal, that discusses how credit bureaus are collecting extra information on consumers with the intent to sell the information to banks and/or other potential lenders.
Lenders are still leery of approving new loans and are using information from the credit bureaus to look at several aspects of a person's financial history before approving a loan. It's about much more than your credit score, although that's still an important factor.
Some of the things lenders are looking at are:
-Income Estimations: Credit bureaus plug your credit-record information into a model to generate your estimated income. Things they plug in are the size of credit lines and the payment amount of your mortgage and how long you've had it. They also use this method to double-check the income you list on credit applications to decide if you should be approved or not. You can't see their estimates, however, if you're denied credit then you have to be granted another chance to provide more information.
-Rent Payments:
Some people don't have enough credit experience to have a "useful" credit score. However, they still pay rent and utility bills and this helps credit bureaus determine "credit-worthiness."
Even if those consumers don't want credit, that information could help them win better rates from insurers, which may use insurance scores based on credit records, and fatten up thin credit files, which some employers check before making hiring decisions.
Credit bureaus say they also would like to offer data on cellphone payments, but have run into concerns over privacy issues, which may require legislation to untangle.
-Collection Triggers:
If you owe money, you can run, but you can't hide. Credit bureaus can now send daily reports to collection companies when a debtor's financial status changes—say, if new employment information appears or if a debt starts to decline. A drop in credit use would indicate that the consumer has more capacity to pay and a better chance of repaying other outstanding debts.
-Home Value:
Since home values have fallen sharply and foreclosures have risen, lenders have become much more wary or new loans. Using home value as a decided credit factor isn't very widespread, but could affect someone in states such as California or Nevada. This could definitely work in your favor if you're one of the 25 million Americans who own their own home.
-Wealth.
Assets other than your car or home aren't part of your credit score but may play a role in your financial future. If lenders have a bigger grasp of a consumer's "balance sheet" they might be more likely to approve loans and be able to more fully assess their risks.
As lenders are beginning to look at all aspects of your financial capability, being careful and timely with all payments and bills can definitely work in your favor should you apply for a loan.
If you have had credit issues and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
You can receive our free report on The Five Secrets Debt Buyers Don't Want You To Know About When They Sue You In Alabama by filling out the form below.
You get sued by a debt collector (debt buyer) such as Asset Acceptance, Arrow, Cavalry, LVNV, Midland, Unifund, etc. You win your case in an Alabama court.
Now what happens to your credit report?
The debt buyer that sued you must remove the tradeline (for that account) off of your credit report because, under Alabama law, you don't owe the money if you received a verdict or a dismissal with prejudice.
We talk about this here:
You can receive our free report on The Five Secrets Debt Buyers Don't Want You To Know About When They Sue You In Alabama by filling out the form below.
Associated Press has posted an article that discusses how loan modifications have been pushing some homeowners to foreclosure.
Jacob Adelman, writer of the article, cites the example of Mr. and Mrs. Casco, of Long Beach, CA, who weren't behind on any mortgage payments and were offered a reduced payment plan by their bank, JPMorgan Chase. They chose to sign up for the program and continued to stay on top of their monthly payments. Then JPMorgan decided that the smaller payments, that the bank itself had set, wasn't enough and then foreclosed on the couple's home. Amazingly, the bank says that the couple was treated fairly.
"We worked with the borrower to give him as many opportunities as possible to qualify for a modification," he said. "However, they were not able to do so and therefore we were forced to foreclose on the property."
Sadly, this is not the only example of banks not living up to their end of a mortgage modification. Statistics from the Treasury show that about one-third of the 1.4 million homeowners who signed up for a mortgage modification have had their mortgage permanently modified.
Several lawsuits have been filed in Boston that accuse major lenders of violating their contracts under the Home Affordable Mortgage Modification Plan (HAMP). The lawsuits say that the banks agreed that if homeowners paid their trial modified mortgages on time then it would become a permanent modification. Instead, attorneys say that some homeowners' mortgages went back to the original amount, which they were unable to pay, which then pushed them into foreclosure.
In San Francisco, the Housing and Economic Rights Advocates legal services group sued Chase, accusing the New York bank of profiting from collecting payments during long trial modifications that ultimately end in foreclosure.
"They're participating in the crisis they had helped to foment by refusing to honor loan modifications they had already agreed to," said attorney James C. Sturdevant, whose firm is assisting in the lawsuit.
Laurie Maggiano, policy director at the Treasury Department's Homeownership Preservation Office, commented that banks have been "encouraged" to offer trial modifications to qualified homeowners and the banks aren't obligated to make the modification permanent until this June. In June new regulations stopped loan servicers from offering modifications just based on homeowners' "stated income."
Now, incomes and other details are being fully vetted before trial periods, and borrowers are preapproved for a permanent modification as long as they make three trial period payments, she said.
She also said banks are only obliged to grant modifications if the investors who hold the mortgages also benefit from the modification, as mandated by the October 2008 legislation approving the bailout.
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
The New York Times has posted an article about the steep price some homeowners are paying to avoid foreclosure. Some homeowners in Florida have taken out a second mortgage on their home to pay for their foreclosure defense lawyer. The new second mortgage doesn't take effect until after the foreclosure has been dismissed. This is a controversial idea among defense lawyers, some think it's "creepy" and "crass" and is currently only being done in Florida.
This option also raises an interesting question: How exactly does the lawyer get paid?
David Streitfeld , author of the article, says that since there have been so many problems with banks improperly processing foreclosures and foreclosing on the wrong homes, there has been a surge of homeowners "flocking to lawyers" to see if they can fight the bank. The problem with this is that if a homeowner is in foreclosure it generally means they're broke and aren't able to pay legal fees.
“We thought, ‘Why don’t we use a bit of ingenuity to find an affordable way to represent them?’ ” said Peter Ticktin of the Ticktin Law Group in Deerfield Beach, Fla. “It’s a new model, a new paradigm.”
Foreclosure defense is a new legal specialty whose strategies and techniques are still being worked out. Mr. Ticktin, who has some 3,000 foreclosure clients, says his plan to collect fees by taking another mortgage on his clients’ properties has already been copied by other firms.
The "Ticktin mortgages" are very similar to the loans the homeowner originally obtained from companies like GMAC, Countrywide and others. Each of the second mortgages is a contractual agreement with the law firm, labeled as a mortgage, and a certain amount is paid every month with the house being used as collateral. The defense lawyers typically receive a few hundred dollars in payment each month from each client.
If the defense lawyer can get the homeowner's mortgage modified or nullified due to the bank's errors then the homeowner must take out the second mortgage for 40% of the savings.
For instance, if the mortgage was $500,000 and is reduced by the bank to $200,000, the client would owe Ticktin 40 percent of $300,000, or $120,000, minus any legal fees paid by the losing bank as well as any monthly sums paid to the law firm.
Florida homeowners are drawn to this option because it lets them avoid foreclosure, stay in their home, and save a good chunk of money. However, as good as it may sound, there are still some potential problems such as whether or not a homeowner would be able to make the payments over an extended period of time and what the defense lawyers would do about it.
“We would never enforce the mortgage and foreclose,” he said. “We’re not in that end of the game. We’re not money lenders. We’re charging a small amount of interest” — four percent — “just to make it legal.”
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Gary Nitzkin, writer of the article, brings up the example of Larry D'Ambrosio, owner of the Unicredit America, Inc. collection company. Unicredit is being accused of using several illegal tactics to collect from debtors, such as setting up a fake courtroom and having "trials" and also having people impersonate police officers who would go out and serve people subpoenas that required them to report to the fake court. The Pennsylvania Attorney General shut the operation down and is currently trying to permanently close the collection agency.
Mr. D'Ambrosio and Unicredit committed outright violations of the Fair Debt Collection Practices Act. (FDCPA). The FDCPA is responsible for protecting consumers and for overseeing debt collectors. The type of violations committed by Unicredit happen surprisingly frequently, however, debt collectors not knowing that their collection tactics violated the FDCPA is no excuse and won't get them any breaks.
The best way to collect on a debt is not to do anything outside of the FDCPA's umbrella of restrictions.
The fact is that you don't need to even go near its borders between permissible and impermissible behavior to collect debt successfully. The days of hard core bulling a debtor have been over for decades. Consumers have access to free or low cost attorneys and information about their rights under the FDCPA from the internet. These days, charm wins people over.
Collectors can even try to "partner" with debtors to work together to collect or resolve a debt. By working with a debtor, you get more cooperation and will make more progress faster than through harassment. Also, if one debt collector is after a consumer's money, it's very likely that others are too and by cooperative and respectful "your bill goes to the top of his pile of bills."
Sometimes it's impossible to "partner" with a consumer. Instead of resorting to harassment the best FDCPA-approved option is for a debt collector to file a lawsuit and go through the (real) judicial system.
If you have had problems with debt collectors, or have been harassed by one, and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
The CL&P Blog has posted an article about how the newest Federal Reserve Governor, Sarah Bloom Raskin, admitted that the mortgage servicing system currently in place is not effective and can even be called "broken." She spoke last week at the National Consumer Law conference in Boston about general mortgage servicing problems and, unlike other banking regulators, she didn't ignore the mortgage servicing industry's failures- such as the "robo-signing" scandal.
Mortgage loan servicers continually get it wrong that foreclosure affirms that the homeowner is in default. This is because of a variety of errors, such as misapplied payments or "force placed insurance." Raskin also pointed out that there aren't any "major economies of scale in servicing defaulted mortgages, and no effective competition for the business." This means that the mortgage industry doesn't receive as much concentration from the banks as it should, which is partly due to the fact that four major banks own about half of all mortgages.
This sentence from the Governor's speech sums it up nicely:
"While there may be some specific practices--"robo-signing" among them--that are possible to isolate and eliminate, chronic, uncured problems continue to plague this industry."
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
In a case we filed against Chase (credit card company) and the large debt collector NCO, allegations were made about alleged violations of the FDCPA (Fair Debt Collection Practices Act) and the TCPA.
These allegations are listed below:
COMPLAINT
COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Defendants states as follows:
1. This action arises out of Defendants’ repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”) and out of the invasions of Plaintiff’s personal and financial privacy by the Defendant and its agents in their illegal efforts to collect a consumer debt from Plaintiff.
PARTIES
2. Plaintiff is a natural person who is a resident of Alabama, and is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3).
3. Defendant Chase Bankcard, LLC, (“Defendant” or “Chase”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Delaware and it is incorporated in Delaware.
4. Defendant NCO Financial Systems, Inc., (“Defendant” or “NCO”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is the State of Pennsylvania and it is incorporated in Pennsylvania.
FACTUAL ALLEGATIONS
5. Plaintiff allegedly incurred a financial obligation that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
6. Defendant Chase assigned the debt to Defendant NCO.
7. Defendant NCO began harassing collection activities against Plaintiff.
8. Defendant NCO made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
9. Defendant NCO refused on one or more occasions to give the mini-miranda and other disclosures as required when leaving voicemails in its efforts to collecting the debt.
10. Defendant NCO also illegally used an autodialer, predictive dialer, and/or pre-recorded calls to Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
11. Plaintiff never gave either Defendant permission to call Plaintiff’s cell phone with an autodialer, predictive dialer, or to use pre-recorded calls.
12. Defendant Chase is liable for these calls under the TCPA as they were made by its debt collector, Defendant NCO, as Defendant NCO told Plaintiff they were collecting this account on behalf of Defendant Chase.
13. The harassing and repeated phone calls have been made within the applicable statute of limitations period.
SUMMARY
14. All of the above-described collection communications made to Plaintiff by Defendants and collection agents of Defendants were made in violation of the FDCPA and TCPA.
15. The above-detailed conduct by these Defendants of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
16. This series of abusive collection calls by Defendants and their agents caused Plaintiff stress and anguish as a result of these abusive calls.
17. Defendants’ repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
18. Plaintiff has suffered actual damages as a result of these illegal collection communications by these Defendants in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
19. All actions by Defendant NCO were in the line and scope of its agency relationship with Defendant Chase and Defendant Chase is responsible for all of the wrongful acts of the Defendant NCO.
NEGLIGENT AND WANTON HIRING AND SUPERVISION
20. Defendants negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
21. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
22. The acts and omissions of Defendant NCO and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff, including the failure to give the required mini-miranda warning and other disclosures.
23. As a result of Defendant’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from Defendant.
COUNT II.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)
24. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
25. Defendants have repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal automatic dialers, predictive dialers, and/or pre-recorded messages that have been unleashed against Plaintiff by Defendants.
26. There is no exception or justification for the numerous violations of the TCPA by Defendants as Plaintiff has not consented to the Defendants to use these against Plaintiff’s cell phone.
27. Each call is a separate violation and entitles Plaintiff to statutory damages against Defendants in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
28. All actions taken by Defendants were taken with malice, were done willfully, recklessly and/or 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 TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
29. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.
COUNT III.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
30. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
31. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Defendants violated Alabama state law as described in this Complaint.
32. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings: 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.
15 U.S.C. § 1692(a) (emphasis added).
33. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.
15 U.S.C. § 6801(a) (emphasis added).
34. Defendants and/or their agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
35. Defendants and their agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
36. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
37. The conduct of these Defendants and their agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by these Defendants which occurred in a way that would be highly offensive to a reasonable person in that position.
38. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Defendants.
39. All acts of Defendants and their agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Defendants are subject to punitive damages.
COUNT IV.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
40. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
41. Defendants negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
COUNT V
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
42. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
43. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
44. Defendants violated all of the duties Defendants had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
45. It was foreseeable, and Defendants did in fact foresee it, the actions of the Defendants would lead and did lead to the exact type of harm suffered by Plaintiff.
46. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
47. Defendants invaded the privacy of Plaintiff as set forth in Alabama law.
48. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
49. As a result of this conduct, action, and inaction of Defendants, Plaintiff has suffered damage as set forth in this Complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against Defendants:
COUNT I.
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against Defendant NCO;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against Defendant NCO;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against Defendant NCO.
• for such other and further relief as may be just and proper.
COUNT II.
TCPA
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.
COUNT III.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT IV.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA/TCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT V.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.
/s/ John G. Watts
Attorney for Plaintiff
Serve defendants via certified mail at the following addresses:
Chase Bankcard, LLC
c/o The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
NCO Financial Systems, Inc.
The Corporation Company
2000 Interstate Park Dr. Ste 204
Montgomery, AL 36109
We have warned consumers to be very careful about settling debts as sometimes debt collectors will come after you even after you have settled your case.
Here is an example of a lawsuit against the well known debt collector (debt buyer) LVNV and Leading Edge Recovery Solutions, LLC, related to allegations that the consumer settled the debt but yet LVNV then sued the consumer. LVNV refused to dismiss the case with prejudice but when the trial came, LVNV did not show up to court according to the judge's order.
Here are the allegations if you are interested in reading:
COMPLAINT
COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Defendants state as follows:
1. This action arises out of Defendant LVNV’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA ”), and out of state law violations and out of the invasions of Plaintiff’s personal and financial privacy by all of the Defendants and their agents in their illegal efforts to collect a consumer debt from Plaintiff.
2. Debt collectors are abusing Alabama consumers at an astonishing rate and are doing so as they believe few consumers know their rights or will act upon their rights so the economic gain far outweighs any perceived danger of a lawsuit or verdict.
3. Congress found it necessary to pass the FDCPA due to rampant abusive practices by dishonorable debt collectors. 15 USC § 1692 is entitled "Congressional findings and declaration of purpose" and it states as follows:
(a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by 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.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d) Abusive debt collection practices are carried on to a sub¬stantial 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 com-merce.
(e) It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt col¬lection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
[Emphasis added].
PARTIES
4. Plaintiff is a natural person who is a resident of Alabama, and is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3).
5. Defendant LVNV Funding, LLC, (“Defendant” or “LVNV ”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Nevada and it is incorporated in Delaware.
6. Defendant Leading Edge Recovery Solutions, LLC., (“Defendant” or “Leading Edge”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is in the State of Illinois and it is incorporated in Illinois.
Factual Allegations
7. Plaintiff settled his alleged LVNV debt with LVNV and LERS in March 2008 by paying $5,144.77 on an alleged debt of $7,349.63, which resulted in a zero balance being owed.
8. Defendant LVNV started (within the last 12 months) calling Plaintiff to collect this non-existent debt after Plaintiff settled the debt with Defendant.
9. Plaintiff pointed out to Defendant LVNV that he paid the debt and Defendant LVNV refused to stop collection activities.
10. Instead, with full knowledge that Plaintiff owed Defendant LVNV no money, Defendant LVNV sued Plaintiff, for the approximate difference between the amount claimed to be owed and the amount Plaintiff paid Defendants in March 2008.
11. In this suit, Defendant LVNV asserted it was the owner of a certain debt allegedly owed by Plaintiff.
12. In Plaintiff’s Answer, Plaintiff produced a copy of the settlement collection letter by Defendants and the cancelled settlement check to the Court and the Defendant LVNV.
13. In Plaintiff’s Answer to the collection suit, Plaintiff stated “I would like for this company [LVNV] to do what they said they would do as I have already done.”
14. The collection letter from 2008 stated if the settlement amount was paid, “we will consider the account SETTLED IN FULL.”
15. An honorable debt collector would have immediately dismissed the case with prejudice.
16. Defendant LVNV refused to dismiss the lawsuit.
17. Defendant LVNV is not an honorable debt collector.
18. Defendant LVNV waited until immediately before trial to take any action – this was an attempt to take Plaintiff’s money when Plaintiff owed no money to Defendant LVNV.
19. Defendant LVNV, realizing it had been caught, tried to dismiss the lawsuit the Friday before trial. The motion to dismiss the lawsuit requested that the dismissal be without prejudice as the Defendant LVNV intended to be able to sue the Plaintiff in the future or to sell or assign the debt to a collector who would then collect against Plaintiff. The Motion is dated April 27, 2010, but it is stamped filed on June 11, 2010, over 30 days after Defendant had been caught filing this bogus suit.
20. Plaintiff had to hire legal counsel.
21. The Court denied the “motion to dismiss without prejudice” on June 11, 2010.
22. Showing a complete disrespect to the Plaintiff and to the Court, Defendant LVNV and/or Defendant LVNV’s counsel did not even show up for the trial in the bogus and frivolous suit it brought against Plaintiff.
23. The Judge entered an Order dismissing the case with prejudice on June 15, 2010. The Order states “Dismissed with prejudice. Plaintiff [LVNV] failed to appear.” [Emphasis added].
24. The Defendant LVNV filed and continued to prosecute the case without any reasonable basis to do so.
25. The case against Plaintiff was brought with malice against Plaintiff.
26. Defendant LVNV has falsely reported to the credit reporting agencies that Plaintiff owed it money.
27. This was done in order to extort money out of Plaintiff.
28. Defendant LVNV assigned the alleged debt to Defendant LERS at some point prior to March 2008.
29. Defendant LERS only took collection actions authorized by Defendant LVNV and only engaged in authorized collection activities authorized by Defendant LVNV against Plaintiff .
30. All of the activities of Defendant LERS were taken in the line and scope of its agency relationship with Defendant LVNV.
31. Defendant LERS sent a collection letter to Plaintiff in early 2008 making the representation that if Plaintiff paid $5,144.74, that the account would be settled in full and that the credit report agencies would be informed of this.
32. This collection letter was fraudulent as Defendants LVNV and LERS had no intention of considering the account settled in full and Defendant LVNV had no intention of informing the credit reporting agencies that the account was settled in full.
33. One intention of the Defendants LVNV and LERS was to deceive Plaintiff into paying $5,144.74 by promising that this payment would close the account.
34. The Defendants LVNV and LERS intended that after the payment of the $5,144.74 that either Defendants LVNV and LERS jointly or separately would continue collection activities against Plaintiff.
35. Some of these collection activities would include:
• Collection calls;
• False credit reporting that a balance was still owed and that the account had not been settled in full; and
• Filing of a lawsuit.
36. Defendant LVNV took some or all of the actions listed above and may have engaged in other collection activities against Plaintiff that Plaintiff is not aware of at this time.
37. Defendants LVNV and LERS suppressed the truth from Plaintiff in that Defendants LVNV and LERS did not reveal that the settlement offer was fraudulent and that Defendants either separately or jointly would continue to engage in collection activities against Plaintiff.
38. Defendants LVNV and LERS had an obligation and a duty to speak the truth as Defendants LVNV and LERS are not allowed to make statements which do not contain the full truth.
39. Plaintiff believed the Defendants LVNV and LERS and reasonably and justifiably relied upon the misrepresentations and suppressions of material facts.
40. Plaintiff has been damaged by the misrepresentations and suppressions of material facts by Defendants LVNV and LERS in that Plaintiff paid $5,144.74 on a debt which is highly likely Plaintiff did not even owe, but regardless of that fact, Plaintiff paid this money and yet was subjected to the reprehensible abusive collection activities of the Defendants LVNV and LERS including false credit reporting and being sued by Defendant LVNV.
41. Plaintiff just discovered the fraud when Defendant LVNV, in the last 12 months, began collection activities against Plaintiff.
42. Defendants LVNV and LERS misconduct caused damage to the Plaintiff.
43. The Defendants LVNV and LERS misconduct was designed to harm the Plaintiff as Defendants LVNV and LERS acted with full knowledge of the damage this type of misconduct will cause.
44. Defendants LVNV and LERS were successful in their plan, scheme, design, and did in fact cause severe damages to Plaintiff.
SUMMARY
45. All of the above-described collection communications made to Plaintiff by Defendant LVNV and collection agents of Defendant LVNV were made in violation of the FDCPA, including (but not limited to) §1692d, §1692e (including (2), (5), (8), (10)), §1692f (including (1)).
46. The above-detailed conduct by these Defendants LVNV and LERS of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
47. This series of abusive collection actions by Defendants LVNV and LERS and their agents caused Plaintiff stress and anguish as a result of these abusive calls.
48. Defendants LVNV and LERS attempts to collect this debt from Plaintiff and refusal to stop violating the law is an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
49. Plaintiff has suffered actual damages as a result of these illegal collection communications by these Defendants LVNV and LERS in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
50. The only way that abusive debt collectors like Defendants LVNV and LERS will stop their abusive practices towards consumers is by a jury verdict fully compensating Plaintiffs for the harm done to Plaintiffs and by a punitive damage award in excess of $750,000.
51. A punitive damage award in excess of $750,000 will get the attention of Defendants LVNV and LERS and other abusive debt collectors so that they will realize that it no longer makes economic sense to abuse consumers in Alabama and to gain an unfair competitive advantage over honorable, law abiding collectors.
52. A full compensatory damage award and a full punitive damage award will accomplish the goals of Congress in passing the FDCPA - stop abusive collection practices against consumers and prevent dishonorable debt collectors from having an unfair advantage over collectors that operate within the boundaries of the law.
NEGLIGENT AND WANTON HIRING AND SUPERVISION
53. Defendants LVNV and LERS negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
CAUSES OF ACTION
COUNT I. (LVNV ONLY)
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
54. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
55. The acts and omissions of Defendant LVNV and its agents constitute numerous and multiple violations of the FDCPA with respect to the Plaintiff.
56. As a result of Defendant LVNV’s violations of the FDCPA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from Defendant LVNV.
COUNT II. (ALL DEFENDANTS)
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
57. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
58. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Defendants violated Alabama state law as described in this Complaint.
59. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings: 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.
15 U.S.C. § 1692(a) (emphasis added).
60. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.
15 U.S.C. § 6801(a) (emphasis added).
61. Defendants and/or their agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
62. Defendants and their agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
63. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
64. The conduct of these Defendants and their agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by these Defendants which occurred in a way that would be highly offensive to a reasonable person in that position.
65. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Defendants.
66. All acts of Defendants and their agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Defendants are subject to punitive damages.
COUNT III. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
67. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
68. Defendants’ collectors are allowed and encouraged to break the law in order to collect debts.
69. Defendants are aware of the wrongful conduct of their collectors.
70. Defendants negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and Defendants are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
COUNT IV (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
71. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
72. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in their dealings with and about Plaintiff as set forth in this Complaint.
73. Defendants violated all of the duties Defendants had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
74. It was foreseeable, and Defendants did in fact foresee it, the actions of the Defendants would lead and did lead to the exact type of harm suffered by Plaintiff.
75. Defendants acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in their dealings with and about Plaintiff as set forth in this Complaint.
76. Defendants invaded the privacy of Plaintiff as set forth in Alabama law.
77. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
78. As a result of this conduct, action, and inaction of Defendants, Plaintiff has suffered damages as set forth in this Complaint.
COUNT V (LVNV ONLY)
MALICIOUS PROSECUTION AND ABUSE OF PROCESS AGAINST DEFENDANT
79. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
80. Defendant LVNV instituted and continued prosecuting the lawsuit against Plaintiff with no reasonable basis to do so.
81. Defendant LVNV instituted and continued prosecuting the lawsuit against Plaintiff with malice and with the design and plan that the lawsuit would result in an illegal judgment against the Plaintiff or would cause Plaintiff to pay Defendant LVNV money on a non-existent debt.
82. The malicious plan of Defendant LVNV included the knowledge that the fraudulent judgment would be devastating to Plaintiff’s credit report and credit scores and would lead to garnishments and the Defendant LVNV tried to accomplish this by the Defendant LVNV’s malicious and abusive actions.
83. Throughout the entire illegal lawsuit against Plaintiff, Defendant LVNV knew at all times that there was no basis for the lawsuit and the intent and design of filing the lawsuit and continuing to prosecute the lawsuit was to extort money from the Plaintiff which Defendant LVNV knew it was not entitled to receive.
84. The litigation against Plaintiff filed by Defendant LVNV eventually resulted in an adjudication in favor of Plaintiff after Defendant LVNV realized that its illegal scheme and plan had unraveled in that it had been caught, so much so that Defendant LVNV first tried to dismiss the case without prejudice and then refused to even show up for trial.
85. The illegal and improper actions of the Defendant LVNV constitute malicious prosecution and abuse of process.
86. The Plaintiff suffered past and future emotional distress and monetary loss as a direct and proximate result of Defendant LVNV’s abuse of process and malicious prosecution.
COUNT VI (ALL DEFENDANTS)
FRAUD
87. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
88. Defendant LERS only took collection actions authorized by Defendant LVNV and only engaged in collection activities authorized by Defendant LVNV against Plaintiff.
89. All of the activities of Defendant LERS were taken in the line and scope of its agency relationship with Defendant LVNV.
90. Defendant LERS sent a collection letter to Plaintiff in early 2008 making the representation that if Plaintiff paid $5,144.74, that the account would be settled in full and that the credit report agencies would be informed of this.
91. This collection letter was fraudulent as Defendants LVNV and LERS had no intention of considering the account settled in full and Defendant LVNV had no intention of informing the credit reporting agencies that the account was settled in full.
92. One intention of the Defendants LVNV and LERS was to deceive Plaintiff into paying $5,144.74 by promising that this payment would close the account.
93. The Defendants LVNV and LERS intended that after the payment of the $5,144.74 that either Defendants LVNV and LERS jointly or separately would continue collection activities against Plaintiff.
94. Some of these collection activities would include:
• Collection calls;
• False credit reporting that a balance was still owed and that the account had not been settled in full; and
• Filing of a lawsuit.
95. Defendant LVNV took some or all of the actions listed above and may have engaged in other collection activities against Plaintiff that Plaintiff is not aware of at this time.
96. Defendants LVNV and LERS suppressed the truth from Plaintiff in that Defendants LVNV and LERS did not reveal that the settlement offer was fraudulent and that Defendants either separately or jointly would continue to engage in collection activities against Plaintiff.
97. Defendants LVNV and LERS had an obligation and a duty to speak the truth as Defendants LVNV and LERS are not allowed to make statements which do not contain the full truth.
98. Plaintiff believed the Defendants LVNV and LERS and reasonably and justifiably relied upon the misrepresentations and suppressions of material facts.
99. Plaintiff has been damaged by the misrepresentations and suppressions of material facts by Defendants LVNV and LERS in that Plaintiff paid $5,144.74 on a debt which is highly likely Plaintiff did not even owe, but regardless of that fact, Plaintiff paid this money and yet was subjected to the reprehensible abusive collection activities of the Defendants LVNV and LERS including false credit reporting and being sued by Defendant LVNV.
100. Defendants committed the misrepresentation and suppressions of material facts intentionally, willfully, recklessly, wantonly, negligently, and/or innocently.
101. Plaintiff just discovered the fraud when Defendant LVNV, in the last 12 months, began collection activities against Plaintiff.
102. The misconduct of Defendants caused Plaintiff injuries and damages.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against Defendants LVNV and LERS:
COUNT I. (LVNV ONLY)
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
• for an award of actual damages pursuant to 15 U.S.C. § 1692k(a)(1) against Defendant LVNV;
• for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. §1692k(a)(2)(A) against Defendant LVNV;
• for an award of costs of litigation and reasonable attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) against Defendant LVNV.
• for such other and further relief as may be just and proper.
COUNT II. (ALL DEFENDANTS)
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent FDCPA violations and intentional, reckless, and/or negligent invasions of privacy in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT III. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations and intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT IV. (ALL DEFENDANTS)
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
COUNT V (LVNV ONLY)
MALICIOUS PROSECUTION AND ABUSE OF PROCESS AGAINST DEFENDANT
• for an award of actual damages from Defendant LVNV for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or wrongful violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
COUNT VI (ALL DEFENDANTS)
FRAUD
• for an award of actual damages from Defendants for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or wrongful violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
WATTS LAW GROUP, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. STAN HERRING, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.
/s/ John G. Watts
Attorney for Plaintiff
Serve defendants via certified mail at the following address:
LVNV Funding, LLC
c/o CT Corporation System
2 North Jackson St., Suite 605
Montgomery, Alabama 36104
Leading Edge Recovery Solutions, LLC
c/o CT Corporation System
2 North Jackson St., Suite 605
Montgomery, Alabama 36104
Here is a video discussing the dangers of settling with debt collectors:
COMES NOW, Defendant, by and through his attorneys of record and files his amended Answer and Counterclaim against Deutsche Bank National Trust Company as Trustee (Deutsche) and American Home Mortgage Servicing, Inc. (AHMSI) as follows:
1. All allegations of the original answer and counterclaim are asserted and incorporated as if fully set forth herein. This amendment is adding to the original answer and counterclaim – no claims or allegations are withdrawn.
2. This amended pleading is filed pursuant to Rule 15 and Rule 8.
3. Deutsche and AHMSI are considered “Debt Collectors” under the Fair Debt Collection Practices Act (FDCPA) as they bought the loan or were assigned the loan after it was allegedly in default.
4. The debt at issue was discharged by the Bankruptcy Court for the Northern District of Alabama.
5. At all relevant times AHMSI was acting as the agent for Deutsche.
6. AHMSI and Deutsche sought, on numerous occasions, by phone calls, letters, credit reporting, and other methods, to collect the debt that had been discharged.
7. One way that the AHMSI, acting on its own and in its capacity as the agent of Deutsche, attempted to illegally collect this discharged debt was by committing fraud upon Defendant, starting at least in May or June 2009.
8. AHMSI and the Deutsche represented to Defendant that Defendant could keep his home after the discharge by signing a so called “Security Retention Agreement” that was signed by Defendant on May 21, 2009.
9. This was a blatant attempt to illegally collect the discharged debt.
10. Put into this “new loan” were all sorts of illegal and bogus charges that were not approved by the Bankruptcy Court (one reason reaffirmation agreements are required to be handled under Bankruptcy Court supervision) and Defendant was told that if he made these payments he would own the house.
11. AHMSI and Deutsche never intended to allow Defendant to own his home.
12. The present intent when AHMSI and Deutsche made these representations to Defendant was that Defendant would not own the home as this was simply as scheme and design to wrench more money out of Defendant in an illegal attempt (successful) to collect on a discharged debt and the bogus charges and expenses that occurred during and after bankruptcy.
13. Defendant was deceived by Deutsche and AHMSI (who also hid the truth) in that this was represented to Defendant to be a proper and legal agreement and would benefit Defendant.
14. These misrepresentations and suppressions were of material facts – namely concerning the ability of Defendant to save his home and the legality of the agreement.
15. Defendant, an unsophisticated consumer, did not understand that he was being deceived and that AHMSI and Deutsche had suppressed the truth from him about its intentions and designs.
16. Defendant’s reliance upon Deutsche and AHMSI’s misrepresentations and suppressions of material facts was reasonable and justifiable.
17. Defendant has been damaged in that he signed this bogus and illegal agreement, made payments, had his credit report damaged by AHMSI’s credit reporting, been subject to emotional distress in that he believed he was saving his home when this was all an elaborate scheme to steal money from Defendant.
18. This is prohibited under the Court Order granting the discharge to Defendant.
19. This fraud continued through numerous phone calls and letters that are documented in the documents produced by Deutsche and AHMSI in this case related to collecting the nonexistent discharged debt.
20. AHMSI, at the request and with full approval of Deutsche, falsely credit reported that Defendant owed over a $100,000 to AHMSI and was late in paying this debt.
21. Defendant disputed, through Experian (one of the national Credit Reporting Agencies), the debt listed by AHMSI on his credit report.
22. Experian properly notified AHMSI in accordance with the Fair Credit Reporting Act (FCRA) of the dispute and that the account was allegedly discharged in bankruptcy.
23. AHMSI was required by the FCRA to properly and fully investigate this dispute.
24. AHMSI knew, prior to and at the time of its alleged investigation, that the debt was discharged and has known that for over a year.
25. Despite this knowledge, AHMSI updated and reported as recently as September 2010 to Experian that the loan was recently 150 days late.
26. This is false credit reporting as the loan was discharged over a year ago.
27. AHMSI has also falsely “re-aged” this debt to show the first date of major delinquency or other items which form the trigger for the 7 year reporting period, in 2010 instead of earlier when the debt was delinquent before it was discharged.
28. If AHMSI had conducted a reasonable investigation, it would have corrected the false credit reporting.
29. AHMSI has a policy to “park” its accounts on at least one of the consumer’s credit report. This is a term in the industry for keeping a false account on the credit report so that the consumer will be forced to pay off the balance in order to obtain a refinancing or to qualify for a loan or to increase the consumer’s credit score from the artificially lowered score which directly resulted from the AHMSI’s intentional and malicious conduct.
30. In parking an account, AHMSI knows it is violating its obligations and duties under federal law to accurately report the account, including the dates of delinquencies and the balance.
31. AHMSI knows that parking will lead to false and defamatory information being published every time Defendant’s credit report is accessed and this is the malicious and intentional design behind AHMSI’s actions with the goal to force Defendant to pay on a discharged debt.
32. The violation of the FCRA was done intentionally, maliciously, recklessly, wantonly, and/or negligently.
33. Despite the knowledge of AHMSI and Deutsche, multiple and repeated illegal attempts to collect a nonexistent debt were made by these parties.
34. The multiple incidents of illegal collection activities were not isolated.
35. Instead, Deutsche and AHMSI have a corporate policy of planning, scheming, and conspiring to target consumers who do not fully understand their rights under bankruptcy law, the FDCPA, the FCRA, and state law.
36. The objective of targeting these consumers is to force the consumers into paying for debts that do not exist.
37. The only legal and legitimate means a creditor has to collect on a discharged debt is if that discharged debt has been reaffirmed in a manner that the Bankruptcy Court approves.
38. Deutsche and AHMSI know (and knew at the time of their actions) that this discharged debt was never reaffirmed.
39. Deutsche and AHMSI know (and knew at the time of their actions) that it is illegal to make any efforts to collect this discharged debt.
40. Despite this knowledge, the plan of these parties was successfully carried out as they took advantage of an unsophisticated consumer.
41. The standard that applies in the FDCPA is the “least sophisticated consumer.”
42. By sharp contrast, these parties are some of the largest companies in this country and have extensive and widespread experience with bankruptcy, mortgage issues, debt collection, and credit reporting.
43. These companies know the law but willfully, maliciously, wantonly, recklessly, negligently or otherwise violated these laws to carry out the illegal purpose of collecting money to which these parties had no right to collect.
44. These parties have expressed absolutely no remorse for the way in which they have treated Defendant, an unsophisticated consumer, and this lack of apology or remorse will continue throughout this case with further denials of their wrongdoing instead of admitting the illegal collection activities.
45. Congress found it necessary to pass the FDCPA due to rampant abusive practices by dishonorable debt collectors. 15 USC § 1692 is entitled "Congressional findings and declaration of purpose" and it states as follows:
(a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by 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.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d) 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 com-merce.
(e) It is the purpose of this title to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt col¬lection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
[Emphasis added].
46. Defendant incurred a financial obligation that was primarily for personal, family or household purposes (Defendant’s home loan) and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
47. Deutsche and AHMSI are considered a “debt collector” under the FDCPA and began engaging in debt collection activities against Defendant.
48. Deutsche and AHMSI failed to make all required disclosures to Defendant in violation of the FDCPA.
49. Misrepresentations were made regarding the character, amount, or legal status of the debt.
50. The amount of the debt, the existence of the debt, the amount of fees and charges, were incorrect and not supported by the law and by the note and mortgage.
51. The foreclosure was illegal and constituted a threat to take action which Deutsche and AHMSI were not legally entitled to take.
52. Deutsche and AHMSI used false representations and/or deceptive means to collect on this debt.
53. The collection methods employed by Deutsche and AHMSI were harassing and illegal.
54. As debt collectors, Deutsche and AHMSI are prohibited from engaging in any illegal conduct described in the FDCPA, including, but not limited to:
a. Threatening or taking any action that cannot be legally taken;
b. Using false representations and/or deceptive means to collect on a debt;
c. Charging fees, expenses, and other items that are not allowed by law;
d. False credit reporting;
e. Using harassing or unfair means to collect the discharged debt; and
f. Failing to make all required disclosures and notifications to Defendant.
55. As both Deutsche and AHMSI are debt collectors, they are each responsible for violations of the FDCPA by each other.
56. As both Deutsche and AHMSI at all times acted as the agent for each other, they are responsible for each other’s wrongful conduct as all such conduct occurred within the line and scope of their agency relationship.
57. The wrongful acts of the Deutsche and AHMSI proximately caused serious past and future injuries and damages to Defendant and all damages that flowed from the wrongful conduct was foreseeable to Deutsche and AHMSI who undertook the wrongful acts without any concern for the impact on Defendant.
58. This same conduct by Deutsche and AHMSI has been committed against numerous other consumers who are in the same or similar circumstances as Defendant.
59. Defendant claims all damages and relief allowable by law and equity.
60. All causes of action and counts are realleged as if fully set forth herein.
61. Three new causes of action and counts are pled as follows:
COUNT THIRTEEN
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
62. Defendant incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
63. The acts and omissions of Deutsche and AHMSI and their agents constitute numerous and multiple violations of the FDCPA with respect to Defendant.
64. As a result of the violations of the FDCPA, Defendant is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from the Deutsche and AHMSI.
COUNT FOURTEEN
MISREPRESENTATIONS AND SUPPRESSIONS OF MATERIAL FACTS
65. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
66. One way that the AHMSI, acting on its own and in its capacity as the agent of Deutsche, attempted to illegally collect this discharged debt was by committing fraud upon Defendant, starting at least in May or June 2009.
67. AHMSI and the Deutsche represented to Defendant that Defendant could keep his home after the discharge by signing a so called “Security Retention Agreement” that was signed by Defendant on May 21, 2009.
68. This was a blatant attempt to illegally collect the discharged debt.
69. Put into this “new loan” were all sorts of illegal and bogus charges that were not approved by the Bankruptcy Court (one reason reaffirmation agreements are required to be handled under Bankruptcy Court supervision) and Defendant was told that if he made these payments he would own the house.
70. AHMSI and Deutsche never intended to allow Defendant to own his home.
71. The present intent when AHMSI and Deutsche made these representations to Defendant was that Defendant would not own the home as this was simply as scheme and design to wrench more money out of Defendant in an illegal attempt (successful) to collect on a discharged debt and the bogus charges and expenses that occurred before, during and after bankruptcy.
72. Defendant was deceived by Deutsche and AHMSI (who also hid the truth) in that this was represented to Defendant to be a proper and legal agreement and would benefit Defendant.
73. These misrepresentations and suppressions were of material facts – namely concerning the ability of Defendant to save his home and the legality of the agreement and the charges, expenses, and fees added into the agreement.
74. Defendant, an unsophisticated consumer, did not understand that he was being deceived and that AHMSI and Deutsche had suppressed the truth from him about its intentions and designs.
75. Defendant’s reliance upon Deutsche and AHMSI’s misrepresentations and suppressions of material facts was reasonable and justifiable.
76. Defendant has been damaged in that he signed this bogus and illegal agreement, made payments, had his credit report damaged by AHMSI’s credit reporting, been subject to emotional distress in that he believed he was saving his home and signing a legal valid agreement when this was all an elaborate scheme to steal money from Defendant.
77. This fraud continued through numerous phone calls and letters that are documented in the documents produced by Deutsche and AHMSI in this case related to collecting the nonexistent discharged debt.
78. The fraud was committed intentionally, recklessly, maliciously, wantonly, negligently, and/or innocently.
COUNT FIFTEEN
VIOLATION OF THE FAIR CREDIT REPORTING ACT
15 U.S.C. SECTION 1681
79. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
80. AHMSI is a “furnisher” as it is an entity who, regularly and in the course of business, furnishes information to one or more consumer reporting agencies about its transactions or experiences with any consumer
81. Defendant notified Experian directly of a dispute on the AHMSI account’s completeness and/or accuracy, as reported.
82. Experian properly notified AHMSI of Defendant’s dispute in accordance with the FCRA requirements.
83. AHMSI failed to delete information found to be inaccurate, reinserted the information without following the FCRA, or failed to properly investigate Defendant’s disputes.
84. Defendant alleges that at all relevant times AHMSI failed to conduct a proper and lawful reinvestigation.
85. All actions taken by AHMSI were done with malice, were done willfully, and were done with either the desire to harm Defendant and/or with the knowledge that its actions would very likely harm Defendant and/or that its actions were taken in violation of the FCRA and/or that knew or should have known that its actions were in reckless disregard of the FCRA.
86. All of the violations of the FCRA proximately caused the injuries and damages set forth in this answer and counterclaim.
RELIEF REQUESTED
WHEREFORE, Defendant having set forth his claims for relief against the Mortgage Companies, respectfully prays of the Court as follows:
• That Defendant have and recover against AHMSI and Deutsche a sum to be determined by a jury of his peers in the form of actual damages;
• That Defendant have and recover against AHMSI and Deutsche a sum to be determined by a jury of his peers in the form of statutory damages
• That Defendant have and recover against AHMSI and Deutsche a sum to be determined by a jury of his peers in the form of punitive damages;
• That Defendant have and recover against AHMSI and Deutsche reasonable attorney fees , costs, and expenses; and
• That the foreclosure sale be set aside; and
• That Defendant have such other and further and proper relief as the Court may deem just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Defendant
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Defendant
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
ForeclosureBuzz.com has posted an article and a video that discusses why loan servicers still prefer to foreclose on a home rather than pursue a loan modification. The short answer is money. If there was the money to do a lot of modifications, loan servicers would be much more willing to modify loans to save homeowners from foreclosure.
Instead they always give excuses for not being able to modify a loan such as program/personnel issues, lack of authority, or other reasons. Sometimes they say that the modification program is strained because they are helping lots of people. While it's likely true that the modification program is strained, it's not due to the number of people they're helping. If that were true, then the foreclosure department wouldn't be so busy.
Also, lenders are suspiciously careful when processing modifications...as opposed to foreclosures where they conveniently ignore laws. When it comes to modifications "they want to cross every t."
Robert Doggett, writer of the article, says the reason behind loan servicers' double standard is simple: money. They can make more of a profit by foreclosing on a property than by modifying the loan. You can check out a video of Mr. Doggett's testimony against loan servicer abuses here:
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
LPP is a mortgage company (perhaps only the servicing company) that has taken over a lot of defaulted loans of New South Federal. Many Alabama consumers were in the process of modifying their loans with New South when the FDIC took over the bank in December, 2009.
You may know that in Alabama foreclosures are "non judicial" which means no judge gets to approve the foreclosure before it happens. But after foreclosure, the alleged new owner (almost always the mortgage company) must sue you to eject (evict) you from the home. This gives you an opportunity to have a judge review what has happened.
Here are some of the allegations of a recent counterclaim alleging fraud in the postponement of a foreclosure we filed after LPP foreclosed on our clients' property and then sued them to eject them from their home:
AMENDED ANSWER AND COUNTERCLAIM
COME NOW Defendants, by and through their attorneys of record and file their Amended Answer to the LPP’s Complaint, and their Counterclaim pursuant to Rule 13 of the Alabama Rules of Civil Procedure as follows:
BACKGROUND INFORMATION ON MORTGAGE FORECLOSURE CASES
1. This state is facing a crisis of epic proportions.
2. Foreclosures are sweeping through this state at an alarming rate, damaging communities in the process.
3. More alarming, however, are the vast numbers of foreclosures that are illegal.
4. All across this country, and in Alabama, companies are foreclosing when they have no legal right to foreclose.
5. Companies that do not properly own the note and mortgage are foreclosing. When questioned, they belittle efforts by Judges to ensure that only companies with the right to foreclose actually foreclose.
6. The typical response to questions by homeowners and Judges is “This is not a big deal. Don’t worry about technicalities on who owns the loan. You can trust us - we are the big banks after all.”
7. Even more disturbing is that these banks and mortgage companies are engaged in wholesale fraud against homeowners in the area of modifying the loan agreement or postponing the foreclosure.
8. This case is a perfect example of what is happening across the country and this state.
ANSWER
For answer to the LPP’s Complaint, Defendants respond as follows:
1. All material allegations are denied.
AFFIRMATIVE DEFENSES TO THE UNDERLYING
FORECLOSURE AND EJECTMENT ACTION
1. Defendants allege that there was no default at the time of the foreclosure.
2. Defendants allege that the LPP did not have actual physical possession of the original note at the time the foreclosure.
3. Defendants allege that acceleration was improper and in violation of the contract between the parties.
4. Defendants allege that the parties entered into an agreement which cured any alleged default and is an absolute defense to foreclosure.
5. Defendants allege that the LPP failed to comply with applicable mortgage servicing regulations, guidelines and agreements and as such a condition precedent to acceleration and foreclosure has been violated requiring dismissal of the underlying foreclosure action.
6. Defendants allege that the LPP failed to offer pre-foreclosure loss mitigation as required. This failure requires that the underlying action seeking foreclosure be dismissed or abated until such time as this requirement is satisfied.
7. Defendants allege that the LPP did not have standing to initiate a foreclosure or ejectment action against Defendants.
8. Defendants allege that the assignments, endorsements, or allonges from, to, or involving LPP, or any other entity were void, voidable, illegal, without legal effect and are otherwise invalid and unenforceable as a matter of law.
9. The foreclosing entity lacked standing to initiate a foreclosure, therefore the foreclosure is void or at least voidable and no title has passed to LPP as there was no legal title to pass to it from the foreclosing entity.
10. The title taken to the property by the LPP is of no effect and is void because the underlying foreclosure was commenced in violation of law on one or more of the following grounds:
a. The foreclosing entity lacked standing to foreclose.
b. The foreclosure was taken in violation of law in that the foreclosing entity did not own the mortgage debt upon which it foreclosed and therefore could pass no legal title to the lands it claimed to foreclose nor could it acquire legal title to the lands that it foreclosed upon.
c. The foreclosure was taken in violation of law in that the default was exaggerated, inflated and based upon improper and illegal mortgage servicing practices on the part of the foreclosing entity and its agents or employees.
d. The foreclosure is voidable in that the foreclosure sale was completed by fraud, deceit or trickery on the part of the foreclosing entity and its agents, employees or servants in that the foreclosing parties represented that Defendants would not be foreclosed upon, but then the LPP failed to follow this promise.
e. The LPP failed to strictly comply with the requirements set out in Alabama law and the contract between the parties, with respect to notice, time and place and other legal provisions thereby rendering the foreclosure void.
f. The LPP failed to engage in loss mitigation required by its agreements and federal servicing guidelines which the entity is subject to, and because of the failure of the condition precedent to foreclosure the acceleration and default were invalid and illegal and renders the foreclosure void.
g. There was no default upon which to accelerate based upon the agreement to modify or forbear the underlying debt.
h. The LPP that allegedly foreclosed on Defendants had no authority to do so as they did not own the note and mortgage so as to give them the right to foreclose.
COUNTERCLAIM
Defendants herewith their counterclaim as follows:
1. This action arises out of LPP’s repeated violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and out of state law violations and out of the invasions of Defendants’ personal and financial privacy by the LPP and its agents in their illegal efforts to collect a consumer debt from Defendants.
PARTIES
2. LPP LPP Mortgage, Ltd. (“LPP”) in this action is a foreign corporation doing business in Marshall County, Alabama, and is considered a debt collector under the FDCPA as it was assigned the debt at issue when the debt was allegedly in default.
3. Fictitious Defendants “A”, “B” and “C” thereby intending to refer to the legal entity, person, firm or corporation which was responsible for or conducted the wrongful acts alleged in the counterclaim; names of the Fictitious parties are unknown to the Defendants at this time but will be added by amendment when ascertained.
4. Defendants are residents of Alabama, and are over the age of 19.
STATEMENT OF FACTS
5. Congress found it necessary to pass the FDCPA due to rampant abusive practices by dishonorable debt collectors. 15 USC § 1692 is entitled "Congressional findings and declaration of purpose" and it states as follows:
(a) There is abundant evidence of the use of abusive, decep¬tive, and unfair debt collection practices by 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.
(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collec¬tion of debts.
(d) Abusive debt collection practices are carried on to a sub¬stantial 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 com-merce.
(e) It is the purpose of this title 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, and to promote consistent State action to protect consumers against debt collection abuses.
[Emphasis added].
6. Defendants incurred a financial obligation that was primarily for personal, family or household purposes (Defendants’ home loan) and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
7. LPP claims the debt was in default at the time the servicing rights were assigned or transferred to LPP on or about December 18, 2009.
8. LPP is considered a “debt collector” and began engaging in debt collection activities against Defendants.
9. LPP failed to make all required disclosures to Defendants in violation of the FDCPA.
10. Misrepresentations were made regarding the character, amount, or legal status of the debt.
11. The amount of the debt, the amount of fees and charges, were incorrect and not supported by the law and by the note and mortgage.
12. The foreclosure was illegal and constituted a threat to take action which LPP was not legally entitled to take.
13. As set forth below, LPP used false representations and/or deceptive means to collect on this debt.
14. The collection methods employed by LPP were harassing and illegal.
15. Defendants were in a loan modification process with LPP when LPP requested additional papers for the loan modification on May 11, 2010 and gave Defendants 15 days to send the papers to the LPP.
16. Thus, Defendants had until May 26, 2010 to return the papers.
17. Defendants called the week of May 11, 2010 to confirm that the sale was postponed and LPP assured Defendants it was. Defendants were told the same thing at least one other occasion.
18. Defendants sent the papers to LPP and LPP received the papers on May 23, 2010, within the 15 day period.
19. Amazingly, LPP foreclosed on May 25, 2010, within the 15 day window.
20. The sale was without proper notice to Defendants and in direct derogation of Alabama common and statutory law.
21. LPP sent Defendants a letter denying the loan modification.
22. The only reason for the denial of the loan modification was that a foreclosure occurred on May 25, 2010.
23. LPP alleges that it is the purchaser of the property made the subject of this suit.
24. LPP has pursued an order ejecting Defendants from their home while representing to the Court that the foreclosure sale was lawful and that the LPP had the present right, ownership and authority to pursue the foreclosure and that LPP has the right to evict the Defendants.
25. LPP has represented to this Court that it is the proper holder of said mortgage and therefore foreclosed in accordance with Alabama law and its rights under the security agreement.
26. Defendants allege that the LPP lacked standing to foreclose in that it has no present legal right to enforce the security agreement that underlies the foreclosure action.
27. Defendants allege that the alleged assignments between the original lender, and any other entity is defective, void, or otherwise unenforceable.
28. Defendants contend that said sale was wrongful, illegal, in violation of law and the documents governing the relationship between Defendants and the owners of their mortgage.
29. Defendants contend that the foreclosing entity lacked standing to initiate a foreclosure and that the foreclosure is void or at least voidable and that no title has passed to LPP as there was no legal title to pass to it from the foreclosing entity.
30. Defendants allege that the actions of the LPP, and its agents, employees and servants were wrongful.
31. Defendants allege that the actions of the LPP in bringing an action for ejectment from their home and the LPP wrongfully foreclosing is a violation of law, wrongful and tortuous and that LPP holds no title to the home or property, and that the actions of LPP constitutes negligence, wantonness, intentional misconduct, fraud, breach of contract, abuse of process and slander of title.
32. As a direct result of the acts complained of, Defendants have been caused to suffer, and will continue to suffer great mental anguish, damage to their reputation, economic and emotional damages and claim from LPP all damages allowable under the law.
33. All parties acted within the line and scope of any agency relationship and all of their employees and agents acted with the line and scope of their employment and/or agency relationship.
COUNT ONE
NEGLIGENCE
34. Defendants reallege all paragraphs as if set out here in full.
35. The LPP negligently conducted a foreclosure sale on Defendants’ property and have negligently attempted to eject Defendants from the home they rightfully own since the foreclosure performed is void.
36. The LPP negligently handled, serviced, and processed payments, charges, fees, expenses, and other aspects of Defendants’ loan and mortgage, including the loan modification process.
37. As a direct result of the said negligence, Defendants were injured and damaged as alleged above and have suffered mental anguish, economic injury and all other damages allowed by law.
38. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to their negligence.
COUNT TWO
WANTONNESS
39. Defendants reallege all paragraphs as if set out here in full.
40. The LPP acted with reckless indifference to the consequences, and consciously and intentionally conducted a wrongful foreclosure sale on Defendants’ property and the LPP has acted with reckless indifference to the consequences, and consciously and intentionally in instituting this action to eject Defendants from the home they rightfully owns since the foreclosure performed is void.
41. The LPP wantonly applied, imposed, or created charges, fees, expenses, and payments, and other aspects of the Defendants’ loan and mortgage including the loan modification process.
42. These actions were taken with reckless indifference to the consequences, consciously and intentionally in an effort to increase profits for the LPP.
43. The LPP knew that these actions were likely to result in injury to Defendants including financial and emotional injuries and mental anguish.
44. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to its wantonness as well as punitive damages.
COUNT THREE
UNJUST ENRICHMENT
45. Defendants adopt and reallege all paragraphs as if set out here in full.
46. The actions of the LPP in foreclosing on the home of Defendants in violation of law resulted in the LPP being unjustly enriched by the payment of fees, insurance proceeds and equity in the home.
47. As a result of the LPP’s unjust enrichment, Defendants have been injured and damaged in that Defendants have been forced to pay charges that were illegal, wrong in character, wrong in amount, unauthorized, or otherwise improper under threat of and the actual illegal foreclosure by the LPP.
48. Defendants claim all damages allowable under law as a result of the LPP’s wrongful conduct and unjust enrichment.
COUNT FOUR
WRONGFUL FORECLOSURE
49. Defendants reallege all prior paragraphs as if set out here in full.
50. The LPP has initiated a foreclosure proceeding against Defendants in violation of law and the LPP has wrongfully brought an action for ejectment.
51. The foreclosure proceeding by the LPP and ejectment action by LPP was either negligent, wanton or intentional, depending on proof adduced at trial.
52. As a result thereof, the LPP is liable for all natural, proximate and consequential damages due to its actions including an award of punitive damages.
COUNT FIVE
ABUSE OF PROCESS
53. Defendants reallege all paragraphs as if set out here in full.
54. The LPP maliciously obtained the issuance of the writ or process of ejectment, from this Court and had it served on Defendants.
55. The LPP abused the said writ or process because the attempt to eject Defendants from their home with the knowledge that they are the rightful owner of their home and that the LPP had no right to act against them.
56. As the proximate result of LPP abuse of the said writ or process, Defendants were caused damages and will continue to suffer injuries and damages.
57. Defendants claim all damages allowable under law.
COUNT SIX
SLANDER OF TITLE
58. Defendants reallege all paragraphs as if set out here in full.
59. The LPP, in filing a foreclosure deed (which is void) have caused a cloud to be placed on the title of the property of Defendants.
60. As the proximate cause of LPP’s slandering of Defendants’ title, Defendants were caused to suffer injuries and damages and claims all damages allowable under law.
COUNT SEVEN
BREACH OF CONTRACT
61. Defendants reallege all paragraphs as if set out here in full.
62. The LPP breached the contract with Defendants and thereby caused Defendants incidental and consequential damages (including mental anguish).
63. Defendants claim all damages allowable under law.
COUNT EIGHT
FRAUD
64. Defendants reallege all paragraphs as if set out here in full.
65. Shortly before the foreclosure, LPP committed misrepresentations and suppressions against Defendants in that LPP told Defendants that the foreclosure would not occur as Defendants were in the process of a loan modification.
66. At the time of the fraud LPP had no intention of honoring their representation.
67. The LPP suppressed from Defendants the truth that it intended to foreclose on Defendants on May 25, 2010.
68. All misrepresentations, and suppressions of these material facts were made intentionally, recklessly, and/or negligently.
69. Defendants properly relied upon the misrepresentations and suppressions of the LPP and were damaged thereby.
70. Defendants could have taken steps to prevent the foreclosure (including filing bankruptcy or curing any alleged default) but Defendants were prevented from doing so by the misrepresentation and suppression of the LPP as it was not until after the foreclosure sale that Defendants knew they had been deceived.
71. This was the purpose and design of this common type of fraud in the mortgage industry – lie about the fact that the foreclosure will not occur so the borrower and homeowners will rely upon the fraud.
72. When there is reliance, then the homeowners will be lulled into a sense of safety by the abusive LPP and the homeowners will not take any further action as they believed that the LPP was reviewing the modification request and was not going to foreclose – precisely what the LPP intended the homeowners to believe.
73. It is proper and appropriate for homeowners to believe LPP when these types of misrepresentations and suppressions of material fact are made – who would know better than the LPP whether or not the foreclosure was going to happen?
74. No one else in the world would know better than the LPP the truth of whether or not they were going to foreclose.
75. All misrepresentations, and suppressions of these material facts were made intentionally, recklessly, and/or negligently.
76. The purpose and intent was to cause Defendants to be in a position where they could not save their home which is exactly what happened.
77. Defendants properly relied upon the misrepresentations and suppressions of the LPP and were damaged thereby.
78. Defendants claim all damages allowable under law.
COUNT NINE
NEGLIGENT AND/OR WANTON HIRING, SUPERVISION, AND/OR TRAINING
79. Defendants reallege all paragraphs as if set out here in full.
80. The LPP hired, supervised, and/or trained incompetent agents or employees who committed some or all of the wrongful acts set forth in this Answer and Counterclaim.
81. The LPP knew or should have known of the incompetence of these agents or employees.
82. The LPP was negligent or reckless in their hiring, supervision, and/or training which led as a direct and proximate result to the damages suffered by Defendants.
83. Defendants claim all damages allowable under law.
COUNT TEN
INTENTIONAL AND/OR MALICIOUS CONDUCT
84. Defendants reallege all paragraphs as if set out here in full.
85. All actions of the LPP were made intentionally and/or malicious and led to the damages of Defendants as a direct proximate result.
86. Defendants claim all damages allowable under law.
COUNT ELEVEN
VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. § 1692 et seq.
87. Defendants incorporate by reference all of the above paragraphs of this Complaint as though fully stated herein.
88. The acts and omissions of LPP and its agents constitute numerous and multiple violations of the FDCPA with respect to Defendants.
89. As a result of the violations of the FDCPA, Defendants are entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); (2) actual and compensatory damages; and, (3) reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from the LPP.
COUNT TWELVE
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
90. Defendants reallege all paragraphs as if set out here in full.
91. Alabama law recognizes Defendants’ right to be free from invasions of privacy and LPP violated Alabama state law as described in this Complaint.
92. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
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.
15 U.S.C. § 1692(a) (emphasis added).
93. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.
15 U.S.C. § 6801(a) (emphasis added).
94. LPP and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Defendants, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Defendants’ privacy.
95. LPP and its agents intentionally, recklessly, and/or negligently caused emotional harm to Defendants by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Defendants’ right to privacy.
96. Defendants had a reasonable expectation of privacy in Defendants’ solitude, seclusion, private concerns or affairs, and private financial information.
97. The conduct of LPP and its agents, in engaging in the above-described illegal collection conduct against Defendants, resulted in multiple intrusions and invasions of privacy by the LPP which occurred in a way that would be highly offensive to a reasonable person in that position.
98. As a result of such intrusions and invasions of privacy, Defendants are entitled to actual damages in an amount to be determined at trial from LPP.
99. All acts of LPP and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such LPP is subject to punitive damages.
RELIEF REQUESTED
WHEREFORE, Defendants having set forth their claims for relief against the LPP, respectfully pray of the Court as follows:
a. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of actual damages;
b. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of punitive damages;
c. That Defendants have and recover against the LPP a sum to be determined by a jury of their peers in the form of statutory damages;
d. That Defendants have reasonable attorney’s fees, costs, expenses;
e. That the foreclosure sale be set aside; and
f. That Defendants have such other and further and proper relief as the Court may deem just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Defendants
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Defendants
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
If you never gave permission to the auto finance company (GMAC, Nuvell, GMAC, Capital One Auto, Santander (Drive Financial), etc) then there is no excuse for them calling your cell phone with a robo-dialer or autodialer or using a pre-recorded message. This normally violates the law including the TCPA.
If you gave permission, you can always revoke it. We suggest doing this by a written letter sent certified mail, return receipt requested. Calls after that may be illegal if they are from a computer dialer (auto dialer or predictive dialer) or contain pre-recorded messages.
Here are the allegations of an Alabama consumer related to a suit filed against Santander in which the consumer claims Santander violated laws including the TCPA:
COMPLAINT
COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the Santanders states as follows:
1. This action arises out of Santander’s repeated violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”), out of state law violations and out of the invasions of Plaintiff’s personal and financial privacy by the Santander and its agents in their illegal efforts to collect a consumer debt of Plaintiff’s wife, Vanessa Brooks, from Plaintiff who does not owe Santander.
PARTIES
2. Plaintiff is a natural person who is a resident of Alabama.
3. Santander Santander Consumer USA, Inc., (“Santander” or “Santander”) is a foreign debt collection firm that engages in the business of debt collection. It conducts business in Alabama. Its principal place of business is the State of Texas and it is incorporated in Illinois.
FACTUAL ALLEGATIONS
4. Plaintiff’s wife allegedly incurred a financial obligation (car loan) that was primarily for personal, family or household purposes and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
5. Plaintiff does not owe this debt.
6. Santander made a large number of harassing and repeated phone calls to Plaintiff’s cell phone.
7. Santander refuses to stop calling and in particular using illegal pre-recorded messages.
8. Santander refuses to stop calling and in particular to stop using auto dialers.
9. Santander refuses to stop calling and in particular to stop using predictive dialers.
10. Santander illegally used an autodialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
11. Santander illegally used a predictive dialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
12. Santander illegally used pre-recorded calls to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
13. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with an autodialer.
14. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with a predictive dialer.
15. Plaintiff never gave Santander permission to call Plaintiff’s cell phone with pre-recorded calls.
16. Plaintiff even told Santander not to call his cell phone but Santander continued to do so in violation of the law and told Plaintiff they were going to continue to call Plaintiff.
17. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying Santander a debt which Plaintiff does not owe.
SUMMARY
18. All of the above-described collection communications made to Plaintiff by Santander and collection agents of Santander was made in violation of the TCPA.
19. The above-detailed conduct by this Santander of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
20. This series of abusive collection calls by Santander and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
21. Santander’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
22. Plaintiff has suffered actual damages as a result of these illegal collection communications by this Santander in the form of anger, anxiety, emotional distress, fear, frustration, damage to reputation, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy, which was due to the illegal conduct of Santander.
RESPONDEAT SUPERIOR LIABILITY
23. The acts and omissions of Santander’s agents who communicated with Plaintiff as more further described herein, were committed within the line and scope of their agency relationship with their principal the Santander.
24. The acts and omissions by these other debt collectors were incidental to, or of the same general nature as, the responsibilities these agents were authorized to perform by Santander in collecting consumer debts.
25. By committing these acts and omissions against Plaintiff, these other debt collectors were motivated to benefit their principal the Santander.
26. Santander is therefore liable to Plaintiff through the doctrine of Respondeat Superior for the wrongful, intentional, reckless, and negligent acts, errors, and omissions done in violation of state and federal law by its collection employees, including but not limited to violations of the TCPA and Alabama tort law, in their attempts to collect this debt from Plaintiff.
NEGLIGENT AND WANTON HIRING AND SUPERVISION
27. Santander negligently and/or wantonly hired, retained, or supervised incompetent debt collectors and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)
28. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
29. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal automatic dialers that have been unleashed against Plaintiff by Santander.
30. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal predictive dialers that have been unleashed against Plaintiff by Santander.
31. Santander has repeatedly violated the TCPA by the calls made to Plaintiff, specifically the numerous calls by illegal pre-recorded messages that have been unleashed against Plaintiff by Santander.
32. There is no exception or justification for the numerous violations of the TCPA by Santander as Plaintiff has not consented to the Santander or to any original creditor to use these against Plaintiff’s cell phone and Plaintiff instructed Santander it had no permission to call his cell phone but the calls continued.
33. Each call is a separate violation and entitles Plaintiff to statutory damages against Santander in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
34. All actions taken by Santander were taken with malice, were done willfully, recklessly and/or 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 TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
35. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
36. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
37. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Santander violated Alabama state law as described in this Complaint.
38. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:
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.
15 U.S.C. § 1692(a) (emphasis added).
39. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:
It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.
15 U.S.C. § 6801(a) (emphasis added).
40. Santander and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
41. Santander and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
42. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
43. The conduct of this Santander and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this Santander which occurred in a way that would be highly offensive to a reasonable person in that position.
44. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from Santander.
45. All acts of Santander and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Santander is subject to punitive damages.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
46. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
47. Santander negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and are thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
48. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
49. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
50. Santander violated all of the duties Santander had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
51. It was foreseeable, and Santander did in fact foresee it, the actions of the Santander would lead and did lead to the exact type of harm suffered by Plaintiff.
52. Santander acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
53. Santander invaded the privacy of Plaintiff as set forth in Alabama law.
54. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
55. As a result of this conduct, action, and inaction of Santander, Plaintiff has suffered damage as set forth in this Complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against Santander:
COUNT I.
TCPA
• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
• for an award of actual damages from Santander for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.
/s/ John G. Watts
Attorney for Plaintiff
Serve Santander via certified mail at the following address:
Santander Consumer USA, Inc.
c/o CT Corporation System
2 North Jackson Street, Suite 605
Montgomery, Alabama 36104
Our friend Denise Richardson of givemebackmycredit.com has posted an article that compares myths to the actual facts surrounding mortgage/loan servicing, loan modifications and foreclosures.
Myth: "Banks don't make accounting errors."
Fact: It seems to be a common belief that all banking institutions are orderly and on top of things and as long as you make your payments on time there won't be any problem. However, this is not always true. Just making timely payments may not stop the bank from reporting negatively to the credit bureaus, which impacts your credit score.
Everyone knows how important it is to review your credit report to search for errors, but few people take the same diligence when reviewing their monthly loan statements. If your credit report wrongfully contains late payments it can take years to restore your credit. Or if you're a victim of identity theft on top of having an error-ridden credit report, undoing the combined damage can take years.
Ms. Richardson says that:
In a nutshell, if you are paying a mortgage, student or auto loan without tracking and verifying your payments have been properly accounted for and applied accurately, you could be headed for trouble-- without even knowing it.
Many borrowers are not properly notified that their mortgage and/or the servicing rights were sold or transferred -let alone -to whom. Uninformed of the transfer, the borrower continues sending their payments to the wrong entity, and are completely unaware their mortgage had fallen into default -left to incur hefty penalties, late fees, and accrued interest charges. When the borrower is stunned by a notice of default from the new company, they soon learn that it arrives with a demand for thousands of dollars. They are informed that without making full payment -immediately, their home will be foreclosed on.
Myth: Mortgage servicing companies are on your side and want to help you.
Fact: Actually getting a loan modification is quite a feat. They just don't happen very often. A sensible solution to the foreclosure problem would be to give more homeowners loan modifications, but the Obama administration's programs to do this have failed. Some of these programs have even forced homeowners through unfair or illegal foreclosures after the homeowners were led to believe their mortgage had been modified. At the end of July 2010 there had been roughly 421,000 permanent loan modifications from their banks...out more than 1.5 million trial modifications and 3.1 million loans that are eligible.
Myth: Foreclosure is always deserved.
Fact: Some of the many reasons for foreclosure are not legitimate. The bank can say that paperwork is "out of order" and "needs review." The paperwork can turn into a big mess and it takes a lot of effort and attention to be certain that there are no fake or fabricated documents. Lenders aren't afraid to foreclose, even if it is because of an error on their end.
Or:
What happens if the borrower is foreclosed on by bank #1 and the real owner of the note comes forward to get paid? Hmm, is bank #1 going to pay bank #2? I doubt it. The fact is many innocent homeowners who have paid their mortgages on time have had their homes "stolen"...reverse bank robbery.
There is no such thing as a consumer being too vigilant. You can't always believe what you hear and you should do your own research and always "look before you leap into judgment."
If you have further questions or concerns, feel free to contact us through our website or by calling 205-879-2447. You may also obtain a copy of our free book on stopping wrongful foreclosures and the problems of hidden fees by emailing us.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Bankruptcy is a legitimate option for many Alabama consumers but what do you do when after you have received a discharge (meaning you don't owe the debt anymore) the mortgage company -- such as Bank of Americar (BAC Home Loan Servicing) -- continues to call and write to collect on a debt that does not exist anymore?
What do you do after you tell the company to not bother you -- to not call you on your cell phone with an illegal autodialer, to not write you anymore?
When the mortgage company -- whether Chase, GMAC, Litton Loan, PHH, LPP, Wells Fargo, Bank of America, etc -- won't stop breaking the law then one way to get them to stop is to sue them.
We have copied the allegations from a lawsuit we filed against Bank of America (BAC Home Loan Servicing) on this subject to give you an idea of some options you have when dealing with this type of company violating the law in this way.
COMPLAINT
COMES NOW the Plaintiff, by and through counsel, in the above styled cause, and for Plaintiff’s Complaint against the BAC states as follows:
1. This action arises out of BAC’s repeated violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA ”) and out of the invasions of Plaintiff’s personal and financial privacy by the BAC and its agents in their illegal efforts to collect a non-existent debt from Plaintiff.
PARTIES
2. Plaintiff is a natural person who is a resident of Alabama.
3. BAC BAC Home Loans Servicing, LP, (“BAC” or “BAC”) is a foreign debt collection firm that engages in the business of debt collection.
FACTUAL ALLEGATIONS
4. Supposedly, BAC purchased or was assigned or otherwise was collecting an alleged debt of Plaintiff and began harassing collection activities against Plaintiff.
5. Plaintiff does not owe this alleged debt.
6. Plaintiff filed bankruptcy and the alleged debt was discharged.
7. Discharged debt cannot be collected on and BAC is in violation of the federal court discharge order by its illegal and intentional collection activities including collection letters and calls.
8. There was no basis or authority for BAC to call and collect this discharged debt from Plaintiff.
9. Plaintiff told BAC the debt was discharged and to leave him alone.
10. BAC told Plaintiff they did not care that Plaintiff’s debt was discharged as BAC was going to collect the debt regardless.
11. Plaintiff told BAC not to call him.
12. BAC refuses to stop calling Plaintiff on a debt he does not owe.
13. BAC made harassing and repeated phone calls to Plaintiff.
14. BAC has no right to make calls to Plaintiff regarding the alleged debt as Plaintiff does not owe the debt.
15. BAC has no right to make calls to Plaintiff as BAC has no relationship with Plaintiff.
16. Plaintiff has not given consent to BAC to contact Plaintiff.
17. Any consent that might have been given was revoked by the discharge and by Plaintiff telling BAC not to call Plaintiff.
18. BAC refuses to stop calling Plaintiff’s cell phone and in particular using illegal pre-recorded messages.
19. BAC refuses to stop calling Plaintiff’s cell phone and in particular to stop using auto dialers.
20. BAC refuses to stop calling Plaintiff’s cell phone and in particular to stop using predictive dialers.
21. BAC illegally used an autodialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
22. BAC illegally used a predictive dialer to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
23. BAC illegally used pre-recorded calls to call Plaintiff’s cell phone without permission to do so in violation of the Telephone Consumer Protection Act (TCPA).
24. The volume and type of calls are harassing as the intent and motive behind them is to harass Plaintiff into paying BAC.
SUMMARY
25. All of the above-described collection communications made to Plaintiff by BAC and collection agents of BAC were made in violation of the TCPA and state law.
26. The above-detailed conduct by this BAC of harassing Plaintiff in an effort to collect this debt was also an invasion of Plaintiff’s privacy by an intrusion upon seclusion and resulted in actual damages to the Plaintiff.
27. This series of abusive collection calls by BAC and its agents caused Plaintiff stress and anguish as a result of these abusive calls.
28. BAC’s repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law was an invasion of Plaintiff’s privacy and Plaintiff’s right to be left alone.
29. Plaintiff has suffered actual damages as a result of these illegal collection communications by this BAC in the form of anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy.
NEGLIGENT AND WANTON HIRING AND SUPERVISION
30. BAC negligently and/or wantonly hired, retained, or supervised incompetent collectors and is thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
CAUSES OF ACTION
COUNT I.
VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
(47 U.S.C. § 227)
31. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
32. BAC has repeatedly violated the TCPA by the calls made to Plaintiff’s cell phone, specifically the numerous calls by illegal automatic dialers, predictive dialers, and/or pre-recorded messages that have been unleashed against Plaintiff by BAC.
33. There is no exception or justification for the numerous violations of the TCPA by BAC as Plaintiff has not consented to the BAC to use these against Plaintiff’s cell phone.
34. Each call is a separate violation and entitles Plaintiff to statutory damages against BAC in the amount of at least $500.00 per call and Plaintiff requests that since the violations were made intentionally or recklessly that the violations be assessed a statutory damage of $1,500.00 per call. 47 U.S.C. § 227(b)(3).
35. All actions taken by BAC were taken with malice, were done willfully, recklessly and/or 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 TCPA and/or that knew or should have known that its actions were in reckless disregard of the TCPA.
36. All of the violations of the TCPA proximately caused the injuries and damages set forth in this Complaint.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
37. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
38. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and BAC violated Alabama state law as described in this Complaint.
39. BAC and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
40. BAC and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy.
41. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
42. The conduct of this BAC and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by this BAC which occurred in a way that would be highly offensive to a reasonable person in that position.
43. As a result of such intrusions and invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from BAC.
44. All acts of BAC and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such BAC is subject to punitive damages.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT DEBT COLLECTORS
45. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.
46. BAC negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and is thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.
COUNT IV
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
47. All paragraphs of this Complaint are expressly adopted and incorporated herein as if fully set forth herein.
48. BAC acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
49. BAC violated all of the duties BAC had and such violations were made intentionally, willfully, recklessly, maliciously, wantonly, and negligently.
50. It was foreseeable, and BAC did in fact foresee it, the actions of the BAC would lead and did lead to the exact type of harm suffered by Plaintiff.
51. BAC acted with negligence, malice, wantonness, recklessness, and/or intentional conduct in its dealings with and about Plaintiff as set forth in this Complaint.
52. BAC invaded the privacy of Plaintiff as set forth in Alabama law.
53. Such negligence, malice, wantonness, recklessness, willfulness, and/or intentional conduct proximately caused the damages set forth in this complaint.
54. As a result of this conduct, action, and inaction of BAC, Plaintiff has suffered damage as set forth in this Complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that judgment be entered against BAC:
COUNT I.
TCPA
• for an award of actual damages from BAC for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations in an amount to be determined at trial for Plaintiff;
• statutory damages of $500.00 or $1,500.00 per call; and
• for such other and further relief as may be just and proper.
COUNT II.
INVASION OF PRIVACY BY INTRUSION UPON SECLUSION
• for an award of actual damages from BACs for all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations and intentional, reckless, and/or negligent state law violations in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT III.
NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND
SUPERVISION OF INCOMPETENT COLLECTORS
• for an award of actual damages from BACs for all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent TCPA violations, intentional, reckless, and/or negligent hiring and supervision of incompetent debt collectors intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damage; and
• for such other and further relief as may be just and proper.
COUNT IV.
NEGLIGENT, WANTON, AND INTENTIONAL CONDUCT
• for an award of actual damages from BAC for the all damages including emotional distress suffered as a result of the intentional, reckless, and/or negligent violations of state law in an amount to be determined at trial for Plaintiff;
• punitive damages; and
• for such other and further relief as may be just and proper.
Respectfully Submitted,
/s/ John G. Watts
John G. Watts (WAT056)
Attorney for Plaintiff
OF COUNSEL:
Watts Law Group, PC
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 879-2447
(888) 522-7167 facsimile
john@wattslawgroup.com
/s/ M. Stan Herring
M. Stan Herring (HER037)
Attorney for Plaintiff
OF COUNSEL:
M. Stan Herring, P.C.
The Kress Building
301 19th Street North
Birmingham, Alabama 35203
(205) 714-4443
(888) 522-7167 facsimile
msh@mstanherringlaw.com
PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.
/s/ John G. Watts
Attorney for Plaintiff
Serve BAC via certified mail at the following address:
BAC Home Loans Servicing, LP.
c/o CT Corporation System
1200 South Pine Island Road
Plantation, Florida 33324
Under the Fair Credit Reporting Act, employers have the right to pull a potential employee's credit report during the interviewing process, with permission from the person being interviewed. Someone who is serious about being hired is very unlikely to say no and not give the company permission. But just because they give the company permission, is a credit report worth pulling?
The answer can be yes and no.
If the job position calls for someone to be handling large amounts of cash, then reviewing their credit report is a good idea. It will show you how responsible they are with their personal finances, which is a good indication how responsible they will be with company money. If the potential employee is in a lot of debt and is loose with his own money there's a good chance that same attitude will translate into how he handles company money.
If the job doesn't involve handling company cash, pulling a credit report isn't really necessary. Some companies still pull credit reports on all employees, regardless of their position. This can have a negative impact for some groups of people. For example, if someone is in debt because of a family member's medical bills they shouldn't be penalized. Credit reports are not, nor should they be, the ultimate factor for a company's hiring decision.
Gary Nitzkin, author of the article, suggests that the best solution is to pull a potential employee's credit report only if they're going to be handling sums of company money or other valuable property. Obtaining the credit reports of all employees is unnecessary.
If you have had problems with credit reporting errors and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
Unicredit, a debt collection company in Eerie, Pennsylvania, had employees dress up as sheriff's deputies and serve people a fake court summons. Then the company had set up a fake court, complete with a fake judge, to intimidate people into making payments, giving bank account access, or hand over vehicle titles or other assets. Sometimes a Unicredit employee was even sent to the home to collect the documents or have the person sign a payment agreement.
The "courtroom" was actually just an office in town but contained typical furniture and a layout you would expect to see in a courtroom, including a raised area for the judge and two "benches" for the defendants and attorneys.
The Pennsylvania Attorney General has, rightfully, brought charges against Unicredit.
However, as outrageous as this case is, it's only different from the "average" tactics used by debt collectors by the scale of the charade. Debt collectors often use intimidation and exaggeration to mislead people. They count on consumers not knowing their rights and lack of experience in dealing with the legal system. Also, the more urgent a debt collector sounds when he contacts you, chances are that he's trying to fluster you and keep you from slowing down and asking yourself, and him, practical questions.
Dana Wilkinson, author of the article, reminds people that:
The most important and most practical advice is to go see an attorney. If you’re being threatened with legal action, an attorney can tell you what really can (and can’t) happen. If you’ve already been intimidated or scammed into giving up something you shouldn’t have, an attorney can tell you how to redress the situation. An attorney can also help you come up with a plan for addressing persistent credit problems, explain your options, and tell you what you can do about it. Knowledge is power, and it is the best, and most effective weapon you can have in protecting yourself from scam artists of all kinds–even the ones you owe.
If you have had problems with debt collectors, or have been harassed by one, and have questions or concerns, feel free to contact us through our website or by calling 205-879-2447.
You can also sign up for our free email newsletter sent out every Thursday morning - we cover topics such as the one in this post. We would love to include you! Just fill out the form below:
