Your credit can be the most important thing you possess as a consumer. Your ability to purchase a car, buy a house, get a job or sign up for utilities can all be based on your credit. You need to protect something that important - unfortunately, unscrupulous debt collectors, creditors and debt buyers will do anything to get paid, no matter the consequences. Make sure you protect yourself if you're ever sued for debt collection, receive an unexpected call from a debt collector, or find an error on your credit report.
Debt Collection Defense
Debt collection lawsuits against consumers come from many different types of accounts and creditors - credit cards, personal loans, auto loans, home equity lines, medical bills, cell phones or cable companies. If you've been served with a lawsuit seeking collection of a debt, you need to consult with an attorney to learn about your rights. Just because someone says you owe money doesn't mean you actually do.
If you've been served with a collection suit, you have thirty days to file a response to the lawsuit.
Suits are typically filed by two types of creditors: original creditors and debt collectors (or debt buyers).
Original Creditors are the companies that actually provided you with a loan, credit or a service. This would include your credit card company, bank, auto loan company, hospital, or loan company.
Debt Buyers are businesses that buy old debts from the original creditors. They purchase debt - your account - for pennies on the dollar, and then demand that you pay full amount for an alleged debt.
Just because you recognize the company suing you, or know you have some type of account with them, does not mean you do not have a defense to the action. Defenses concerning statute of limitations, breach of contract, accounting, improper late fees or charges, and others may be available to you.
Inability to pay a debt is not a defense. Planning on going to court and telling the judge why you couldn't pay - no matter how understandable and serious the reason was - will only result in a judgment against you.
If you're sued by a company you have never heard of claiming they own an account you had with another company, they're a debt collector or debt buyer. Companies like this - Select Portfolio Servicing, LVNV, Portfolio Recovery Associates, National Collegiate Student Loan Trust, just to name a few - claim to own your debt despite not having any contract with you, and generally will file with the court only an affidavit from their own employee to verify that it owns your account. If you do nothing, the court will grant judgment in their favor, despite the lack of proof showing that own your account.
Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA) is a federal law that prohibits debt collectors from using abusive, unfair, or deceptive practices to collect from you. Under the FDCPA, a debt collector is someone who regularly collects debts owed to others. This includes collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them. The FDCPA sets out some important restrictions on what debt collectors can do:
A debt collector cannot call you before 8:00am or after 9:00pm unless you agree to it
A debt collector cannot call you at your job if you tell them not to
A debt collector cannot pretend to be an attorney, government official, judge, court official or anyone else to collect a debt
A debt collector cannot threaten to have you arrested for not paying a debt, and cannot threaten you with any action they cannot legally do
A debt collector cannot curse or use profane language when speaking with you, and cannot use threats of violence or harm
A debt collector must send you a written notice - a "validation notice" - within 5 days of contacting you that states the amount they claim you owe, the name of the creditor to whom you owe the money, and how to proceed if you don’t think you owe the money
If a debt collector has done anything that violates the FDCPA, the law says you can sue to recover actual damages (what you've lost due to the debt collector's conduct) or $1,000.00 per violation, along with paying attorney's fees and costs to file the suit. You only have one year to file suit for a violation after it occured.
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) is a federal law that promotes accuracy, fairness, and the privacy of personal information assembled by Credit Reporting Agencies (CRAs).
If there is an error on your credit report that has negatively affected your credit score, affected your ability to get a loan, or caused you to be charged a higher interest rate, there may be a violation of the FCRA. Errors can include confusing your credit report with that of another person with a similar name, a creditor reporting that a debt has been charged off when it has actually been paid off in full or settled, reporting late payments when you have paid on time, or incorrectly stating the balance of your account.
The three major credit bureaus (Experian, TransUnion and Equifax) are required to take affirmative steps to correct all disputes or allegations of misinformation on your credit report. Credit bureaus, and the creditors who report information to the bureaus, must ensure the accuracy of your accounts.
Proper steps must be taken to dispute false credit reporting information once you learn about it. Failure to follow proper procedure could harm a potential case.
What are damages for a violation of the FCRA? A consumer who has been the victim of a violation of FCRA can recover actual damages (what you'd lost due to the wrongful actions), or $1,000.00 per violation, along with attorney's fees and costs.
South Carolina Consumer Protection Code
The South Carolina Consumer Protection Code protects your rights as a consumer when dealing with businesses. Everything from caps on interest rates, restrictions on debt collectors, requirements for repossession a vehicle, rules for contents of advertisements, and door to door sales are contained in the Consumer Protection Code.
Many consumers in South Carolina have rights they are not even aware of. Consumers can be at a natural disadvantage when dealing with businesses who process hundreds of similar transactions and are well-versed in the law and regulations. Without knowledge of their legal rights, South Carolina consumers can be targets for scams and practices designed to take advantage of them. If you feel you've been involved in such a situation, level the playing field by consulting with a consumer attorney.
One of the most common abusive practices by creditors in South Carolina concerns the repossession of vehicle. When can a car be repossessed in South Carolina? Only when a finance company follows the South Carolina Consumer Protection Code (SC Code 37-5-110) by sending a Right to Cure letter to a consumer prior to repossession. The Right to Cure letter can be sent once a consumer is 10 days late on a payment, and must give the consumer 20 days from the date of the letter to pay the back-owed amount prior to repossession of the vehicle. The notice must state the amount that must be paid, the date it must be paid by, and the name, address and telephone number of the creditor to whom the amount must be paid. A creditor is only required to send one Right to Cure notice during the entire life of a loan. If your vehicle has been repossessed without having ever been sent a right to cure notice, the South Carolina Consumer Protection Code has been violated and you may be entitled to possession of your vehicle and damages.
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Information contained on this website is for informational purposes only and does not constitute legal advice. Nothing contained herein should be construed to create an attorney-client relationship between Hart Consumer Law, LLC and any website visitor. Submission of information to Hart Consumer Law, LLC through this website will not create an attorney-client relationship between a website visitor and Hart Consumer Law, LLC.