Tag Archives: collection

Defenses to Collection Lawsuits

If you are one of the thousands of consumers that is facing overwhelming credit card debt, it may be time to consider filing a personal bankruptcy case. Filing a Chapter 7 or Chapter 13 can allow you to eliminate or discharge your credit card debt and obtain a fresh financial start. However, if filing for bankruptcy protection is not an option for you and collection lawsuits are being filed against you, it is important to confer with an experienced attorney regarding the defenses that may be available to you. Below are a few defenses to a collection lawsuit that might be available to you:

Bankruptcy Attorney serving Cocoa, Florida

Bankruptcy Attorney serving Cocoa, Florida

  • Improper service. If you are not validly served with the summons and complaint, you have an effective defense (if timely alleged).
  • Statute of Limitations. The plaintiff seeking a monetary judgment against you must file the lawsuit by a certain deadline or it is time barred. You have a defense if the debt has gone “stale” and the creditor has lost its right to sue you to collect it.
  • Improper plaintiff. The party suing you must have the right to sue you. In other words, the plaintiff must be owner of your debt. This means that if your account was sold to a collection agent and the original creditor failed to properly transfer the documentation evidencing your debt, it may be possible to get the suit against you dismissed.
  • Wrong defendant. If you can prove that you did not incur the debt and that it does not belong to you, the court may dismiss the lawsuit.
  • Debt discharged. If you filed a prior personal Chapter 7 or Chapter 13 case and included the debt in your filing, proving the debt was discharged will prevent the creditor from proceeding with the lawsuit against you to collect it.
  • Identity theft. If the debt was incurred as a result of you being the victim of identity fraud, it is a valid defense to the lawsuit.
  • Accounting errors. You may have a partial or full defense if the plaintiff failed to correctly credit your account with payments or made some other accounting errors.
  • Unlawful debt collection. If the plaintiff used illegal debt collection practices against you, we can help you allege a counterclaim in the lawsuit. This means that you file a claim against the plaintiff seeking money damages which can be used to offset the amount you owe the plaintiff.

If you are interested in learning whether one or more of the above defenses are available to you, please contact us to schedule an appointment. Our office is located in Melbourne, but we proudly serve individuals and businesses across the State of Florida.


Understanding the Benefits of the Automatic Stay

Automatic Stay

Bankruptcy Attorney serving Satellite Beach

If you are tired of being harassed by relentless debt collectors and you are wondering how filing for bankruptcy can help, the answer is a protection afforded to debtors called the “automatic stay.” As soon as you file your personal Chapter 7 or Chapter 13 petition, the stay immediately goes into effect and prohibits further collection activity against you. This means that all telephone calls, demand letters, lawsuits, garnishments and other similar forms of collection tactics must immediately stop.

There are some exceptions to the automatic stay, so it is important to confer with a bankruptcy attorney regarding what matters will not be halted by your filing. Some of the more common examples of matters that can continue even though you filed for bankruptcy include certain family court matters, criminal court proceedings, and tax audits.

If you have a creditor that has a secured debt (a loan where you pledged an asset as collateral for the lender), it is important to understand that the creditor has the right to file a motion and ask the court to lift the stay as it applies to that lender’s specific debt. There are certain requirements that must be met for the court to grant this type of motion. If the court grants the creditor’s motion, the stay is lifted as to that creditor and the debt at issue. This means that the creditor can proceed with certain actions against you and/or the asset pledged as collateral. For example, if you fail to pay your car loan and you do not have insurance coverage on it, the bankruptcy court may permit your lender to repossess the vehicle.

Although the bankruptcy laws were designed to primarily protect debtors, they also set forth many safeguards for creditors as well. If you are concerned with how the automatic stay will apply to your debt and the collection actions being taken against you, contact us today.

If you have questions about filing for bankruptcy protection, we have the answers. Call us today to schedule your initial consultation. Our office is located in Melbourne, but we proudly serve individuals and businesses across the State of Florida.


Can Bankruptcy Eliminate My Judgment Liens?

When an individual borrower falls behind on paying their bills, creditors start filing collection lawsuits in order to a obtain court judgment. Once the judgment has been granted in favor of the creditor, the collection efforts begin.

A Creditor May Place a Judgment Lien Against Your House

One common collection tool used by many creditors is to place a judgment lien against your house or other real property. This type of lien can help ensure that the creditor will eventually get paid what it is owed, even if it years down the road. How does this occur? The borrower cannot sell his or her home without paying the creditor from the proceeds of the sale in order to remove the lien.

Judgment Liens, Bankruptcy Attorney | Brevard County

Simply Obtaining a Discharge Order Will Not Automatically Eliminate the Judgment Liens Filed Against Your Home

If you have judgment liens filed against your home, filing a personal bankruptcy may be the best option for removing them. Before you implement this strategy, however, it is essential that you confer with a seasoned bankruptcy lawyer. You should be aware that simply obtaining a discharge order will not automatically eliminate the judgment liens filed against your home. In some cases, you can “strip” an inferior mortgage lien. For more information on lien stripping, please read our blog titled “Stripping Off Junior Mortgages in Bankruptcy.” There are also certain types of liens, such as tax liens, that are not avoidable.

Judgment Liens Can Be Found by Searching County Records Where You Own Real Property

Generally, a judgment lien can be discharged pursuant to 11 U.S.C. § 522(f). You can discover if a judgment lien has been placed against your property by searching the records in the counties where you own real property. Many debtors get confused at how judgment liens are handled in their bankruptcy case because the underlying debt can be eliminated but the lien remains intact unless specific action is taken to remove it.

A debtor must remove the judicial lien of a non-priority creditor to the extent the lien encumbers the value of the debtor’s exemptions in the property. This means that if the value of the equity in your home would be exempt even without the lien, you can file a motion seeking to avoid the lien. Upon court approval of your motion, the lien is removed from the title on your real property and it is no longer valid or enforceable.

Contact a Brevard County Bankruptcy Attorney at Faro & Crowder, PA

If you have judgment liens filed against your home and you are interested in learning more about removing them in bankruptcy, call us today to schedule your initial consultation.  We are located in Melbourne, Florida on Sarno Road and serve residents and businesses of the Space Coast and Brevard County.

Services Areas

We provide services throughout Central Florida including: Melbourne, Titusville, Palm Bay, Merritt Island, Cocoa, Cocoa Beach, Satellite Beach, West Melbourne, Cape Canaveral, Viera and Eau Gallie.

Get In Touch with Faro & Crowder, PA

Faro & Crowder, PA
Phone: 321-784-8158
Address:
1801 N. Sarno Road, Suite 01
Melbourne, FL 32935
Email: info@farolaw.com

The information on this blog or any blog is not intended as, and should not be taken as, legal advice.

Ways Debt Collectors Violate Your Rights

Defense Against Debt Collection - Brevard County

Debt Collection Harassment – Brevard County

When you fall behind on your bills, it doesn’t take long before you are being harassed by debt collectors. Whether you owe the debt or not, it is important that you understand your rights under the law. The Fair Debt Collection Practices Act (FDCPA) is an important law that prohibits debt collection agents from using unfair, deceptive or abusive tactics to get consumers to pay their past due accounts.

The FDCPA specifically applies to “debt collectors” which is defined as an individual or entity who routinely collects debts owed to others. This means that the statutes apply to collection agencies, lawyers who regularly collect debts and debt-buyers.

According to the FTC website, the following are examples of prohibited collection actions:

  • Harassment. A collector cannot harass a consumer by threatening violence, using profane language, or calling the debtor repeatedly to annoy him into making a payment. A debt collector is prohibited from threatening to publish the consumer’s name on a list of people who refuse to pay their debts.
  • Unfair practices. There are a variety of ways a collector can engage in unfair collection practices. Common examples are attempting to collect additional fees that are not allowed under the contract or by law, depositing post-dated checks early, or making threats to seize the borrower’s property when the collector has no such right.
  • Deceptive statements. A debt collector is prohibited from lying about who they are or who they work for. A collector must truthfully tell you the amount you owe. Further, the collector cannot lie about actions they can take against you or falsely claim they will have you arrested for not paying your debt. Finally, a collection agent is prohibited from providing false credit information to any other parties, including credit reporting bureaus.

Contact your Brevard County Bankruptcy Attorneys today for a free initial consultation

Consumers deserve to be treated with respect and honesty. If a debt collector is taking any of the above actions against you or is otherwise harassing you, contact the legal team at Faro & Crowder, PA, for the advice and guidance you need.

Common Ways Debt Collectors Violate the Law

debt collectors pic

If you have fallen behind on your bills, you are probably being contacted by debt collectors. The debt collection industry is known for using harassing tactics to persuade debtors into paying their debt. As a result, the Fair Debt Collection Practices Act (FDCPA) is a law that was passed prohibiting collection agents from using unfair, misleading or abusive practices to collect money from borrowers.

Under the FDCPA, a debt collector is anyone who routinely works to recover debts owed to others. Thus, the definition includes collection agencies, lawyers who regularly collect debts and debt-purchasers who try to collect delinquent accounts.

The FTC website provides some guidance in the types of tactics that are prohibited by the FDCPA, including:

  • Unfair practices. A debt collector must act fairly with you. This means that the collector cannot attempt to collect extra amounts of money that are not allowed by your contract or under the law. It also includes actions such as depositing a post-dated check early, threatening to seize your property when it cannot be done illegally, or contact you using a postcard.
  • Harassment. If a collector harasses by threatening violence, using profane language, or repeatedly calling you (especially at inconvenient times) to annoy you into paying the debt, it is a violation of the law.
  • Deceptive statements. Debt collectors are prohibited from lying to you about who they are, the total that you owe, or who they work for or represent. They cannot falsely claim that you are guilty of a crime. The paperwork they send you must be truthful. Also, a collector cannot provide false credit information about you to third-parties, including the credit reporting bureaus.

It is important to understand that even if you are pretty certain you owe the debt to the plaintiff, you are still entitled to be treated fairly and with respect. If you believe a debt collector is violating your rights and harassing you, we can help. Whatever you do, don’t ignore a collection lawsuit. If you are interested in learning more about how we can help you stop the harassment or fight a debt collection lawsuit, contact one of our seasoned bankruptcy attorneys to schedule your appointment.


Don’t Ignore a Collection Lawsuit!

Don't Ignore Lawsuit pic

Being served with a collection lawsuit can be intimidating. While many people are tempted to ignore it because they don’t want to deal with the hassle or they assume they owe the debt anyway so there is nothing they can do. However, failing to respond to the lawsuit can result in the creditor obtaining a default judgment against you. This means that the court assumes that you agree with everything the creditor alleged in the petition. Once the plaintiff is granted a judgment against you, the creditor or debt collector can commence collection efforts against you.

A creditor who has a judgment against you can attempt to collect money from you by garnishing your wages, levying your bank account, and/or recording a judgment lien against your house. In contrast, if you respond to the lawsuit, you provide yourself the opportunity to have the lawsuit dismissed or negotiate a settlement of the debt for a lower amount.

It is common for borrowers who are struggling financially to want to avoid the cost of retaining an attorney. However, many studies have revealed that the vast majority of debtors who have a default judgment entered against them did not have a lawyer assisting them in defending their collection lawsuit. In other words, simply by having an attorney represent you in the lawsuit can drastically increase the likelihood of obtaining a successful outcome.

It is important to understand that even if you are pretty certain you owe the debt to the plaintiff, there are still numerous valid defenses that might be available to you. Whatever you do, don’t ignore a lawsuit. If you are interested in learning more about how we can help you fight a debt collection lawsuit, contact one of our seasoned bankruptcy attorneys to schedule your appointment.


What Collection Activity Does a Bankruptcy Stop?

Car Accident1

The automatic stay is a powerful benefit of filing a bankruptcy case. As soon as the stay is effective, your creditors are prohibited from taking further collection actions against you. As a result, a bankruptcy filing can be helpful when you are facing financial emergencies, including:

  • Foreclosure. The foreclosure process is a collection activity halted by your bankruptcy filing. At a minimum, your filing can buy you some time to negotiate with your mortgage lender or at least remain in your home for a few additional months.
  • Collection lawsuits. If a creditor, such as your credit card company, has filed a lawsuit against you, your bankruptcy filing will halt the litigation. In many cases, the debt underlying the collection lawsuit can be discharged in your filing.
  • Garnishment. Garnishments against your wages or your bank account will immediately halt when your Chapter 7 or Chapter 13 case is filed. You may also be able to discharge or eliminate the debt linked to the garnishment action, which means you are no longer liable to pay it.
  • Eviction. Depending on whether your landlord has obtained a judgment for possession against you, the eviction process may be halted by your bankruptcy filing.

Contact a Brevard County Bankruptcy Attorney at Faro & Crowder, PA

If you are interested in learning more about how a bankruptcy filing will impact your debt, contact Faro Crowder, PA to schedule an appointment. We are located in Melbourne, Florida on Sarno Road and serve residents and businesses of the Space Coast and Brevard County.

Services Areas

We provide services throughout Central Florida including: Melbourne, Titusville, Palm Bay, Merritt Island, Cocoa, Cocoa Beach, Satellite Beach, West Melbourne, Cape Canaveral, Viera and Eau Gallie.

Get In Touch with Faro & Crowder, PA

Faro & Crowder, PA
Phone: 321-784-8158
Address:
1801 N. Sarno Road, Suite 01
Melbourne, FL 32935
Email: info@farolaw.com

The information on this blog or any blog is not intended as, and should not be taken as, legal advice.

Facing a Lawsuit? Bankruptcy May be the Answer

When hard times hit and you are unable to pay your bills, it doesn’t take long for creditors to start pursuing you for payment. After a few demand letters and telephone calls, many creditors file collection lawsuits. We understand that this can feel overwhelming and we want to help. Depending on your individual financial situation, filing a personal bankruptcy case may the answer to getting the debt relief you need.

How does filing Chapter 7 or Chapter 13 help? As soon as your bankruptcy petition is filed, the automatic stay goes into effect. The stay prohibits any further collection activity against you, including collection lawsuits. In other words, creditors cannot file collection lawsuits against you and cases that are already filed must come to a halt while your bankruptcy is pending.

If the lawsuit filed against you is an action to obtain a monetary judgment, it will be put on-hold. If there are other causes of action that are not related to the creditor obtaining a monetary judgment, they may be allowed to proceed. Common examples of lawsuits that can proceed while your bankruptcy case is pending include criminal matters and child custody suits. In a collection matter, however, you may be able to eliminate or discharge the debt involved in the lawsuit, which means when you emerge from your bankruptcy case, the lawsuit will no longer be pending against you and you do not have to repay the debt. Your personal liability to pay discharged debts is eliminated in a successful Chapter 7 or Chapter 13 filing.

A personal bankruptcy can also be an effective way to comprehensively deal with your debt. ALL of your creditors must be included in your filing, so when you obtain your discharge order, it is truly a fresh financial start.

If you have one or more lawsuits filed against you and you are wondering how filing for bankruptcy protection could benefit you, contact the attorneys at Faro & Crowder, PA, for a free initial consultation. Our office is located in Melbourne, Florida.


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