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Why Do So Few Consumers in Debt Collection Lawsuits Have a Lawyer?

Why do so few consumers in debt collection lawsuits have a debt defense lawyer?

Unfortunately, the main reason is that many consumers choose to ignore the lawsuit because they do not think that they can succeed against the credit card company or debt collector.

Sadly, if a defendant does not participate in the litigation, the creditor wins the case by default.

But, multiple studies have found that consumers who did have a debt defense lawyer in a debt claim were more likely than those without representation to win their cases or reach a settlement.

Debt Collection Lawsuits

Many people think that creditors prefer to avoid lawsuits because it requires them to pay lawyers and incur litigation costs. This is not true.

Creditors routinely file lawsuits against consumers based on allegations of unreported and missed payments, overdue fees, or charges not authorized by the consumer.

If a defendant fails to respond to the court summons or does not appear in court, the judge may rule in the plaintiff’s favor and issue a default judgment that may result in a monetary award against the defendant.

Default Judgments Can Exact Heavy Tolls On Consumers

Debt collection lawsuits that end in default judgments can have lasting consequences for consumers’ economic stability.

Besides the principal amount, the court may also award court and lawyer’s fees to the plaintiff, which can amount to thousands of dollars.

Once a creditor has a monetary judgment, it can garnish the consumer’s bank account and wages.

Post Judgment Interest

Once the monetary judgment is entered, post-judgment interest starts to accrue.

Post-Judgment Interest is interest on a court judgment that a creditor can collect from the time the judgment is entered in the court clerk’s record until it is satisfied.

Consumers who find themselves paying post-judgment interest on default judgments can face an even deeper cycle of debt.

Why Should You Hire a Collection Defense Lawyer?

A debt collection defense attorney plays an integral role in court proceedings.

A collections defense attorney will assert all viable defenses, file the appropriate motions, and negotiate with creditors.

In the majority of cases, customers with an experienced collection defense lawyer will have a better outcome, such as winning their case.

Conclusion

If a creditor is suing you for any amount of money, contact Diwan Law, the credit card defense attorney, to discuss your legal options. Call Diwan Law, 404-635-6883, for a free consultation.

About Diwan Law

Diwan Law is passionate about getting our clients the best result possible.

Diwan Law handles debt collection cases in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Credit Card lawsuits (i.e. American Express, Citibank, Suntrust, etc.);
  • Suits stemming from automobile repossession deficiencies, apartment leases, and other contract-related matters;
  • Dormant judgment revival; and
  • Garnishment actions on bank accounts or wages.
Debt collections accepting payments

Debt Collector Accepting Late Payments

Have you consistently been making late payments to a creditor or debt collector? If so, the creditor or debt collector may be obligated to continue accepting the late payments.

The Mutual Departure Doctrine

The Mutual Departure Doctrine, O.C.G.A.  §13-4-4, requires that if the parties to a contract, during the course of the execution of a contract, depart from its original terms, neither party can recover without reasonable notice to the other of intention to rely on the exact terms of the original agreement. Until such notice, the original terms of the contract may be suspended by departure.

The most frequent application of this doctrine is where the customer makes regular payments after the due date, and the creditor or debt collector is accepting the late payments with no objections.

The Mutual Departure Doctrine Involves a Two-Step Determination:

  1. Has there been a mutual departure from the terms of the written contract?

The first step is to determine if there has been a mutual departure from the written contract terms and money has been paid and received under such departure.

This rule requires frequent late payments. Therefore, a debt collector accepting one late payment will not be enough to cause the application of the rule. Vaughn v. Wrenn Bros., Inc., 163 Ga. App. 383, 384 (1982).

  1. Has reasonable notice been given of intention to rely on the exact terms of the original agreement?

If the first question is answered in the affirmative, the next step is to determine if reasonable notice has been given of the intention to rely on the exact terms of the original agreement. Snyder v. Time Warner, Inc., 179 F.Supp.2d 1374, 1380 (N.D. Ga. 2001).

In addition to regular, late payments, nonpayment also falls within the ambit of O.C.G.A. § 13-4-4 where there is “a pattern or course of conduct evidencing an agreement or waiver of the provisions in the original contract relating to non-receipt of monthly payments.” Vaughn v. Wrenn Bros., Inc., 163 Ga.App. 383, 384 (1982).

How to preclude a Mutual Departure Defense

A creditor may rebut a mutual departure defense by providing evidence that the creditor disapproved of the late payments, and this disapproval was conveyed to the debtor. See Duncan v. Lagunas, 253 Ga. 61 (1984) (holding that no waiver was supported where the creditor orally expressed displeasure with debtor’s late payments).

The easiest way to preclude a successful mutual departure defense where late payments have been accepted is to notify the customer that the creditor intends to go back to the terms of the contract and will not accept any further late payments. If this notification is sent and the creditor thereafter continues to accept late payments without further notice that such payments are a breach of the agreement, the Court may be authorized to find that the defendant is not in default. See Williams v. Sessions, 171 Ga. App. 662 (1984).

Conclusion

Diwan Law works hard to provide positive results for its clients dealing with debt collection issues.

If a debt collector serves you with a lawsuit, you need an experienced debt collection lawyer. Contact Diwan Law today at 404-635-6883.

About Diwan Law

Diwan Law is dedicated to getting our clients the best result possible.

Diwan Law handles debt collection actions against consumers in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer debt collection lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Original creditor debt collection lawsuits (i.e. American Express, Citibank, Suntrust, etc.);
  • Debt collection lawsuits arising from credit cards, automobile repossession deficiencies, apartment leases, and other contract-related matters;
  • Dormant judgment revival; and
  • Garnishment actions on bank accounts or wages.

Contact Diwan Law at 404-635-6883 for a free case evaluation.

Debt Collection Defense Attorney

What is a Debt Collection Defense Attorney?

A debt collection defense attorney is the lawyer you turn to when your credit card company or a debt collector files a lawsuit against you for an unpaid balance.

While many people believe that they have to pay every penny claimed by the debt collector, thousands of lawsuits are successfully concluded, with the consumer paying little to nothing.

Our debt Atlanta defense collection lawyer will be your advocate, protecting your rights.

How a Debt Collection Defense Attorney Can Help

A debt collection defense attorney will defend you from the adverse effects of a credit card company or debt collector filing a lawsuit. Diwan Law is well versed in collection litigation and has the necessary knowledge and experience to stand by you in the fight against credit card companies or debt collectors.

Many people have no idea about the legal implications of dealing with debt collection companies because they are not educated about their rights. A lawsuit can easily cost you thousands of dollars, and if you are unaware of all your legal rights, you could lose thousands more in the end. This is why a debt collection defense attorney is essential.

Diwan Law will assert all viable defenses you may have, file the appropriate motions, and negotiate with the creditor.

What to Expect from a Debt Collection Defense Lawyer

Diwan Law works with people facing trouble with their credit card companies and other creditors. Diwan Law will provide advice about your rights and the law when dealing with a debt collection lawsuit.

Conclusion

Diwan Law is dedicated to representing consumers’ rights and works hard to get our clients the best result possible.

Diwan Law handles the defense of debt collection actions against consumers in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer debt collection lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Original creditor debt collection lawsuits (i.e. American Express, Citibank, Suntrust, etc.);
  • Debt collection lawsuits arising from credit cards, automobile repossession deficiencies, apartment leases, and other contract-related matters;
  • Dormant judgment revival; and
  • Garnishment actions on bank accounts or wages.

Contact Diwan Law at 404-635-6883 for a free case evaluation.

What is a debt collector

What is a Debt Collector?

A “debt collector,” as defined by the Fair Debt Collection Practices Act [“FDCPA”], is a person or a business that regularly collects debts owed to another. Still, this definition does not fully explain what a debt collector is.

Most first-party creditors [credit card company or bank] or lenders will try to collect debts themselves before resorting to writing it off. Typically, past-due accounts won’t be charged off until they’re 120 to 180 days late.

After a consumer defaults on a loan, the account is sent to a third-party debt collector or buyer [hereinafter referred to as “debt collector”]. The debt collector then attempts to collect on the debt, rather than the first-party creditor or lender to whom the debt is originally owed.

The collection agencies and attorneys who collect these debts as part of their regular course of business are considered debt collectors. Also included are businesses that buy past-due debts from creditors or other companies and then try to collect them.

The debt collection market is significant and affects many people. The Consumer Financial Protection Bureau [“CFPB”] states that around one-third of consumers with a credit bureau file reported contact from at least one debt collector.

The FDCPA is the main federal statute regulating the consumer debt collection market. The FDCPA prohibits debt collectors from engaging in certain types of behavior [such as misrepresentation or harassment] when seeking to collect debts from consumers and grants consumers the right to dispute or stop some communications about an alleged debt.

The Fair Debt Collection Practices Act covers personal, family, and household debts, including hospital bills, credit cards, and car loans.

If a debt collector is contacting you, you need to speak to a consumer’s rights lawyer.

Contact Diwan Law at 404-635-6883 for a free case evaluation.

violations of the fdcpa

Common Violations of the Fair Debt Collection Practices Act

Are you being harassed by debt collectors? Contact Diwan Law today at 404-635-6883 to schedule a free consultation to discuss how the Fair Debt Collection Practices Act [FDCPA] can help you.

When you fall behind on your debts, it seems like your creditors will stop at nothing to try to get you to make a payment. Fortunately, Federal law prohibits a wide range of unfair and abusive debt collection activities.

The Fair Debt Collection Practices Act [FDCPA)] protects consumers from harassment and abusive behavior by debt collectors and collection law firms.

If a debt collector violates the FDCPA, consumers may pursue a lawsuit against the collector. If successful, the consumer is entitled to monetary damages, and the debt collector or collection law firm will also be responsible for the customer’s legal fees.

Typical Violations of the FDCPA:

  • Harassment;
  • Verbal abuse;
  • Continuing to call a consumer after the customer has told the debt collector to stop;
  • Writing or calling the consumer after being notified that a lawyer represents the customer;
  • Threatening to report the consumer to the IRS;
  • Threatening to have the consumer arrested if he or she does not pay the debt collector;
  • Threatening to file a lawsuit against the consumer when none is intended;
  • Calling a consumer’s cell phone without permission;
  • Placing personal information on an envelope;
  • Misrepresenting or inflating the amount of the debt;
  • Failing to disclose that the company is a debt collector;
  • Contacting a consumer after 9 pm or before 8 am;
  • Threatening to take legal action, or sue, on a time-barred or “stale” debt.

If you believe a debt collector has violated the FDCPA, you may be able to take legal action and recover monetary damages. Contact Diwan Law at 404-635-6883 for a free case evaluation.

 

Debt Collection Defense Attorney: Are you being sued by Midland Credit Management or Midland Funding?

Are you being sued by Midland Credit Management?

Are you being sued by Midland Credit Management or Midland Funding?  Midland Credit Management (MCM) and Midland Funding lawsuits can be intimidating and financially devastating. You need a Debt Collection Defense Attorney, Diwan Law, on your side.

What is Midland Credit Management and Midland Funding?

Midland Credit Management (MCM) and Midland Funding lawsuits can be intimidating and financially devastating. You need a Debt Collection Defense Attorney, Diwan Law, on your side.

Midland Credit Management and Midland Funding are debt collection agencies. Debt collectors buy delinquent accounts from banks, credit unions, consumer finance companies, hospitals, auto finance companies, and telecommunication companies.

When a person falls behind on credit card or car payments, he or she will receive a non-stop string of calls and letters from debt collectors, such as Midland Credit Management or Midland Funding.

If you ignore those calls and letters long enough, the debt collector will hire a lawyer who will send you an attorney collection letter.

A debt collection attorney’s collection letter is the last step before the collection agency files a lawsuit against an individual.

Many people think debt buyers, like Midland Credit Management and Midland Funding, prefer to avoid lawsuits because it requires them to pay lawyers and incur litigation costs. This is not true. If this were true, credit card lawsuits would be far less common than is the case.

What to do if you are being sued by Midland Credit Management or Midland Funding 

You need to respond quickly when a debt collection company serves you with a lawsuit. The worst response is to do nothing. If you do not respond to the lawsuit, the debt collector may get a default judgment against you. Besides obtaining a judgment for the principal, the debt collector may be awarded attorney’s fees for the collection of the judgment.

Armed with the default judgment, the debt collection company can garnish your wages and bank accounts. What’s worse is that the judgment continues to accrue interest as the balance remains unpaid.

Before accepting a judgment against you, speak with a Debt Defense Lawyer

A collections defense attorney will explain your rights and the legal process, such as how long you have to answer the lawsuit, the proven defenses, and the impact of a judgment.

Contact Diwan Law

Our law firm is experienced in debt collection law and has an established record of protecting consumer’s rights and explaining your options to you when a company like Midland Funding or Midland Credit Management sues you. No matter where you are in the collection process, you deserve to know your rights and what to expect. Give us a call at 404.635.6883.

Debt Collection Defense: Violations of the FDCPA

Consumer Rights Attorney: Violations of the FDCPA

If you have been one of the many victims of unlawful debt collection practices, then an experienced consumer rights attorney can protect your rights. Contact Diwan Law today at 404-635-6883 to schedule your consultation to discuss these violations of the FDCPA.

Protection from Unlawful Debt Collection Practices

Debt Collection agencies often employ persistent and overly aggressive tactics when attempting to collect outstanding debts. Many of these tactics are against the law.

Consumer protection statutes prohibit such behavior and allow for the recovery of damages and attorney fees.

The Fair Debt Collection Practices Act [“FDCPA”] specifically prevents these abusive debt collection practices.

Violations of the FDCPA

The Fair Debt Collection Practices Act regulates debt collection practices. It prohibits debt collection companies from using abusive, unfair or deceptive practices to collect debts from you.

Examples of the types of consumer debt covered by the FDCPA:

  • Mortgages
  • Credit cards debt
  • Medical debts
  • Car loans

Courts measure violations of the FDCPA by an objective standard called the “least sophisticated consumer” standard. See Jeter v Credit Bureau Inc., 754 F.2d 907, 913 (11th Cir., 1985).

FDCPA Restrictions on communications by debt collectors with Consumers when collecting a debt

  • Time and placedebt collectors may not contact you at an unusual time or place. [Generally speaking, they are prohibited from contacting consumers before 8 a.m. or after 9 p.m.]
  • Harassment- Debt collectors may not harass you over the phone or through any other form of contact.
  • Representation by an attorney- A debt collector may not contact you if a lawyer is representing you.

Examples of FDCPA violations in collections lawsuits

  • Prosecuting a Lawsuit Against A Consumer After the Statute of Limitations Expires

Continuing to prosecute a time-barred claim is a violation of the FDCPA’s prohibition against making false and misleading claims about the debt’s legal status. Fair Debt Collection Practices Act, 15 U.S.C. §1692e.

  • False and Misleading Statements About the Amount Owed

It is a violation of the FDCPA’s to file a lawsuit against a consumer for more than is owed. This action is a direct violation of the FDCPA’s prohibition against false or misleading statements. 15 U.S.C. § 1692e.

If you believe that an abusive debt collector has violated your consumer rights, then Diwan Law can help you. Contact us today at 404-635-6883 to learn more.

Garnishment Lawyer: Wage Garnishment or Continuing Garnishment

Garnishment Lawyer: Wage Garnishment

As an experienced wage garnishment lawyer, Diwan Law can guide your case through the garnishment process.

What is a wage garnishment?

Garnishment is a legal method by which a creditor may recoup a debt owed by an individual or company.

After a creditor, such as a credit card company, obtains a judgment against a customer, the debt collector can initiate a separate lawsuit against a third party [“the garnishee”] that owes money or property to the individual.

The garnishee in a wage garnishment is usually an employer.

Note: Recent changes to the garnishment statute allow creditors to file continuing garnishments against not only a judgment debtor’s employer, but also against a person or entity “under periodic obligations for payment” to the judgment debtor/defendant. This expands the garnishee target list for collection to better fit the current “gig” economy.

Once served with the garnishment action, the garnishee must retain a portion of the employee’s earnings each paycheck to satisfy the garnishment.

Under Georgia law, a garnishee can only withhold up to twenty-five percent of the employee’s disposable earnings for that week.

Until recently, wage garnishment actions had a relatively short shelf life in that garnishees were only obligated to withhold the earnings from each of the employee’s paychecks for a total period of 179 days [roughly 6 months]. A recent amendment to the garnishment statute expanded that time period to 1,095 days (3 years).

Wage Garnishment Defenses

Both federal and Georgia laws govern garnishment actions and protect consumers from excessive withholdings.

An experienced wage garnishment defense attorney can assert several defenses on behalf of a customer. The most common defenses are:

  • The judgment has expired;
  • Federal and Georgia law exempts the funds from wage garnishment;
  • The judgment was satisfied [paid];
  • The consumer filed for chapter 7 or chapter 13 bankruptcy;
  • The plaintiff failed to follow proper procedure in the garnishment action.

Diwan law can guide your case through the garnishment process and be your lawyer to stop the garnishment.

Contact Diwan Law, your wage garnishment lawyer, at 404.635.6883 to discuss your case today.