Tuesday, October 27, 2009

Laws You Should Know About, Table of Contents

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Debtors have to use some logic, too.

I'm slowly slogging through not just the piles of litigation on my desk, but the 30 Days of Debt Collection, and today - -day 23 -- we'll talk about your duty to use common sense when deciding whether the law has been violated.

Most of my entries on the Fair Debt Collection Practices Act (FDCPA) have
focused on what debt collectors do wrong, how they can violate the law, and you may have gathered that (a) there are lots of ways that Debt Collectors can mess up, and (b) the FDCPA is a very technical law with a lot of pitfalls.

Both of those are correct... but there are limits, and one of those limits is that you, the debtor (and your lawyer) have to use a little common sense in deciding whether or not to sue for an FDCPA violation.

In the case of Barnes v. Advanced Call Center Technologies, LLC, 493 F.3d 838 (7th Cir. 2007), three debtors sued Advanced Call Center, claiming that letters they'd received violated the FDCPA. The letters, they said, were misleading.

The "misleading" part of the letters, supposedly, was that the letters included an amount owed -- but that amount was the "p
ast due" amount only, not the total amount owed. The debtors said that was misleading to them... for some reason.

The other misleading part was that the letters said that paying the amount past due would stop collection activity. That, the debtors said, was also misleading, because (the debtors said) it would confuse people into thinking that if they paid the past due amount, then they wouldn't owe anything, ever again, on that debt.

Remember, under the FDCPA, it doesn't matter whether you, the person reading the letter, wer actually misled. It matters whether some hypothetical objective person might have been misled. So a letter can violate the FDCPA by being too confusing, even though you (and your lawyer) were not actually confused.

Is it confusing, then, if you get a letter from a debt collector, and that letter includes, instead of the total amount you owe on your credit card, only the amount that you owe which is past due?

Is it confusing if that letter says that paying the amount past due would stop the debt collector from writing you?

That's what the debtors in the Barnes case hoped the Court would say -- but they hoped in vain, because the courts disagreed with them.

In fact, the Seventh Circuit Court of Appeals called their claims "absurd," and reiterated that the "amount of the debt" being the "past due amount" was okay.

Then, the Seventh Circuit called the plaintiffs' arguments "bizarre," and said that nobody would have interpreted the letters the way they did. There's no chance, the Courts said, that people who owe money on a credit card, but who are behind, would interpret a letter saying "pay the past due amount and we'll stop bugging you" to mean "pay the past due amount and you don't owe anything more ever."

So when you get those letters and want to run to your lawyer and sue someone, remember that you've got to use a little common sense. The law says that debt collectors can't mislead and confuse debtors -- but it also says that debtors can't bend the rules of logic to collect money and get out of paying their debts.

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Friday, October 16, 2009

Make Those Debt Collectors Prove Their Case!

As I slowly wind my way through the increasingly-misnamed 30 Days of Debt Collection, it's time to consider something most people don't probably think of when a debt collector comes calling, and that is this: Do I really owe this debt to this person?

And, more to the point, Can they prove it?

Let's consider the case of Mrs. Consumer, who long ago applied for a credit card, or, as most of us do, applied for a bunch of credit cards. Now let's assume that Mrs. Consumer has run into some financial troubles and gone through some hard times and for one reason or another defaulted on some of her debts and been unable to make those payments.

Mrs. Consumer one day gets a call from Mr. Debt Collector, a call in which Mr. Debt Collector tells her that he is collecting the debt for Such & Such Incorporated.

Mrs. Consumer may make a payment, or several payments, to Such & Such, or may put up with their harassing phone calls, or otherwise be bothered by Mr. Debt Collector, and very few people ever stop to think this: I never borrowed money from Such & Such Incorporated.

I mentioned, early on in this series, the "Validation requirement," a federal rule that requires debt collectors to verify the amount you owe and provide the name of the original creditor, and that's a powerful tool that should be invoked each and every time you deal with a debt collector. Don't shy away from asking people to comply with the law and prove that you owe them money.

But you can, and should, go one further. Ask Mr. Debt Collector to provide you with account statements, and the original account agreement, and any amendments to the account agreement, because those have a variety of helpful information that a lawyer will want to see, and might be able to use.

Buried in all that minutiae, all those documents, are little treasure-troves of information. One set of account statements I saw once in a case showed that attorney's fees had been imposed on the debt -- a violation of Wisconsin law, in that case. Sometimes account statements show other improper charges; or they show that the interest rate should be lower. Or they have a lower principal than is being demanded -- and if you owe less, you should pay less, right?

The original account agreement, and any amendments to that agreement, provide other information. If you weren't married when you took out the account and are married now, there may be limitations on what Mr. Debt Collector can do to your spouse (and spouse's wages) based on the account. Or, there may be different state laws that apply, to your benefit (as I've mentioned before). Amendments-- those changes to the agreement that the credit card company sends you and that you don't read -- can alter those rules, and interest rates, late fees, and other charges.

Hidden in those agreements, too, are things that may require that the debt collector not sue you; there may be arbitration clauses you can invoke, and other defenses.

And it may be that the account itself is a mistake. I see cases occasionally in which a client didn't actually take out the credit card; they're a victim of identity theft or mistaken identity, and shouldn't have to pay.

Most importantly, if the debt collector can't produce those things, they may not be able to sue you -- because they have to prove that you borrowed the money and didn't pay it back, and proving that requires proving that you entered into an agreement (by providing that original agreement) and that you used the credit card (by providing the charge statements) and by proving that he or she has the right to sue you (by providing documentation showing that they're not required to arbitrate and that it's not too late to sue.)

So, Mrs. Consumer, when you talk to Mr. Debt Collector, ask that you be provided the original, signed agreement creating the debt, all account statements, and any changes to them. Be assertive, and don't just assume that because they're calling you, they're right.

Wednesday, October 7, 2009


What I'm Writing, and what I'm Reading, this week!

READ MY BLOGS ON YOUR KINDLE! For as little as 99 cents a month, you'll be subscribed to ongoing serials, humorous stories, and others. Act now and get 14 days free! Click here for more information.

What I'm Writing:

Rachel has one question for Brigitte, and it's this: What happens to a baby when a Valkyrie kills you and you end up in The Void? That's a real head-scratcher. (Lesbian Zombies Are Taking Over The World!)

When Saoirse died, her life began. Starting (hopefully) tomorrow, my latest novel to be serialized online: the After. (5 Pages.)

New Sam's still wondering what his parents are up to what with the jars of tiny clones and the weird symbols...oh, and having New Sam dig all those catacombs for the dead bodies Dad brings home. Read "The Grave-Robbers," if you haven't already, (on AfterDark.)

Want to stop debt collectors from calling you? Then read Family and Consumer Law: The Blog.

The movie role of a lifetime: "Prison Inmate Sitting Behind Henry." Your move, Dame Judi Dench! (The Best of Everything)

Vooks? Blooks? Why does everything on the Internet have to have a stupid name, and what does that have to do with me always being right? (AAAAUGGGH!)

Look, I'll get back to the 1001 Ways soon, all right? I've picked the NL baseball winner, and mentioned the Septathlon, and done 3 Good Things almost every day, but you're never happy! (Thinking The Lions)

What I'm Reading:

She says she has only three readers left, but that can't be right. I love reading read.dance.bliss. It's like poetry only moreso. Does that make sense? Probably not. (read.dance.bliss.)

The Boy is still blogging -- and I disagree with almost everything he says. (Mean True Things.)

My Facebook Friend of the Week is Sabine Goldman. Her profile is here, and Sabine rates "Friend of the Week" because Sabine not only read what I said about those 15 Senators who believe insurance companies should let kids die, but she did something about it: She called Senator John Kyl and spoke to him about health care. Sabine reported:

Just called Senator Kyl, that was interesting. First the guy claimed a bad connection, then it was "Ma'am do you understand all the points of the issue." I said I may not understand all the "points" as he calls them but what ...I do understand is that there are thousand of unemployed people in his home state who cannot afford health insurance. If it weren't for those people he wouldn't be sitting in a cushy house in Washington. So think about that next time he goes to the Dr for anything.

Way to go, Sabine!

Thursday, October 1, 2009

You have enough to do at work without debt collectors bugging you. Here's how to stop them.

I get a lot of phone calls from debt collectors during my workday -- enough to really annoy me, given how often they interrupt my ordinary, workday activities of "reading Dilbert comics" and "leaving funny (?) comments on blogs", but, then, when I get annoyed at the debt collectors, I remind myself that (a) it's my job to take their calls on behalf of my clients, and (b) at least they're not calling me about debts I owe.

If you are getting calls from debt collectors at work, you no doubt want them to stop -- and you can make them stop, completely and absolutely. It's right in the law, and that's our focus here on Day 21 of 30 Days of Debt Collection.

The Fair Debt Collection Practices Act (FDCPA) says that without your prior consent (or without a court order, but who gets those?) debt collectors cannot communicate with you at your place of employment... if the debt collector knows or has reason to know that the employer prohibits you from getting calls like that.

That's an important caveat, there: the prohibition only applies if your employer prohibits those calls, and if the debt collector should know that.

Let's deal with the easy part, first: How would the debt collector know about that policy? Simple: You'd tell them. When you get a call from John The Debt Collector at work, say "My employer doesn't let me get calls like this." Then add, for good measure "So don't call me at work." Just to be clear, you know. Not that you have to be crystal clear; the Seventh Circuit Court of Appeals, at least, has held that simply telling a debt collector you can't talk to them at work is sufficient to notify the debt collector about this.

Which means you've got to take at least one of their calls, you know: You've got to tell them that you can't take any MORE calls, which requires talking to them at least once, or they can keep calling.

Now the harder part: What if your employer doesn't even have a policy? The debt collector in that Seventh Circuit Case claimed that the debtor was lying -- that she not only didn't clearly say that she wasn't allowed to talk to debt collectors, but also, the debt collector claimed, there wasn't really a policy prohibiting that?

The answer, to me, seems pretty simple: If there is no policy against taking those calls, then the debt collector isn't prohibited, by that part of the law, from calling you even though you've claimed that there's a policy and that you can't take those calls.

With me so far? Let me try this: If (a) your employer has a policy against getting calls from debt collectors, or personal calls, or something, and (b) you get a call from a debt collector at work, and (c) you tell them about the policy, more or less, then the FDCPA says that the debt collector can't call you at work.

But if your employer doesn't have that policy, are you out of luck? I'd say not: simply tell your boss or trusted supervisor "I don't want to get these calls," and see if they will then implement a policy. Most employers should be willing to do that: to impose a rule that says "Debt collectors cannot harass our employees." It might be embarrassing to confess that to a boss, but think how embarrassing it would be to continue to get those calls. Which is less embarrassing?

So that's your rule: Make sure your employer bans debt collector calls, then tell the collectors that, and you can stop the calls and go happily back to surfing the internet, having "Cookie Days," going for coffee, and whatever else it is people do these days instead of actual work.

I'm sure, too, that you could get them to serve a little wine at the Saturday morning deal, too.

Add this to the list of all the other reasons you should head to Branson, Missouri: You can learn to cook a "Brimstone Cheese Fondue, Served with Grilled Potatoes, Baby Carrots, Zucchini, Apples, Pears and Baguette."

That's the number one thing I'd want to learn to cook from the menu of appetizers that will be fed to guests during the Hilton Branson Convention Center Hotel's "Cooking School Weekend."

On October 16 and 17, if you stay at the Hilton for this package, you can attend a "Wine Tasting Reception" with appetizers like that Brimstone Fondue. Then, the next morning, the hotel's chef (Nathan Read) will give a lesson on how to cook those appetizers. Which (fingers crossed!) I think means you'd get to have them again! Fondue for breakfast? Sign me up.

Later that Saturday night, the hotel will serve a "lavish" four-course meal, each course pairing up with an appropriate wine, while they teach you how to do that yourself, too. Just in time for the holidays, you'll be ready to whip up fantastic gourmet meals and wow your friends and relatives -- and you'll learn how to do it in style.

The whole package is a deal: $398 for two people includes all those tastings and teachings and cookings AND two nights for two people at the Hilton Branson Convention Center Hotel.

In between fondue & wine, you'll still be able to see shows at the areas 49 theaters, or take part in championship golf on the courses nearby, or, if you're into the education-stuff, you could look at the museums within easy driving distance. I expect, though, that you'd spend most of your time shopping at the promenade that's a short walk from your hotel, if you didn't spend it all at "Silver Dollar City" theme park, roller-coastering off the appetizers from the night before.

I only wish I'd known about this earlier; Sweetie and I were planning on taking cooking classes, and I could have set this up, so that we could cook in style.