The FTC recently filed an amicus brief in support of our firm’s position in a Seventh Circuit appeal involving payday lending and arbitration clauses. In Jackson v. Payday Financial, we have alleged that the defendant’s high interest rate internet payday loans were usurious and violated the Illinois Interest Act and the Illinois Consumer Fraud Act. We are also challenging the defendant’s practice of requiring Illinois consumers to litigate any disputes over the loans in a tribal arbitration forum in a distant state.
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Kudos to the FTC for going after a debt collector who was using text messages and threatening pictures on the outside of envelopes. Edelman, Combs, Latturner & Goodwin, LLC has gone after a multitude of debt collectors for similar abusive conduct. It’s great to see the FTC taking an interest in this area. The Fair Debt Collection Practices Act protects consumers from this type of abuse, and allows them to sue for up to $1,000 in statutory damages, actual damages including emotional distress, and attorney’s fees. Our firm takes good FDCPA cases on a contingency basis. Feel free to give us a call if you are being harassed or treated unfairly by a debt collector.
Q. A debt collector call my place of work and left a message for me with the receptionist, including the name of their company, which makes it obvious what it is about. Can they do this?
A. What you are describing is probably a Fair Debt Collection Practices Act violation, assuming it is a consumer debt and the other requirements of the FDCPA are met. Consult a consumer lawyer. The statute of limitations is one year.
Question: I was served with a summons and complaint for a deficiency for a car repossession in ’09. This is the first time I have heard anything from them since the day they picked up the car. Reading up on it today, I read I should have gotten a Notice of Redemption & an Affidavit for Defense within days after repossession. I don’t even know if the car was ever even sold. The deficiency is about $20,000, what should my next step be?
Answer: Consult an attorney. If this is a retail installment contract, the statute of limitations is four years after breach, so it is possible the debt is time barred. If proper notices were not furnished before and after sale, this may also bar a deficiency. You may also have a claim against the secured party for failure to comply with the Uniform Commercial Code and other laws relating to collection of deficiencies. Collecting a time barred debt may violate the Fair Debt Collection Practices Act.
Question: Should I settle with a debt collector? The payment plan they proposed sounds doable for me. But I’m worried they will start increasing payment amounts and wonder if I should wait until I can pay the full amount.
- If this is an original creditor, settlement may not be a bad idea. If it is a debt buyer, it would be unusual for them to be able to prove anything, including ownership of the debt.
- A settlement should be exactly that — it should not allow one side to increase payments unilaterally. What you are describing does not sound like a settlement. I would never suggest that you enter into a program to pay money without any resolution of the total amount owed and how that amount will be paid. The agreement should specify whether you are agreeing to pay interest and at what rate.
- Debt collectors will often try to get you to make small payments to hold off collection activity. Making such payments restarts the statute of limitations and constitutes an admission. It is never a good idea to make such an agreement with a debt collector. If they are bothering you, you have the right to direct them in writing not to contact you (I suggest fax or certified mail or other means that provides proof of receipt.) They can still sue you but if a debt buyer claims to owe the debt, they are unlikely to be able to prove anything.
Question: Can creditors take your car or attach your checking account for payment?
Answer: Once it has a judgment, a creditor can enforce the judgment against bank accounts and cars, subject to exemptions. Illinois has a $2450 exemption for a car. Illinois also has a $4000 “wildcard” exemption (for any personal property not otherwise exempted) that can be applied to a bank account. In addition, certain types of funds, such as Social Security and pension benefits, are exempt and remain exempt after you have deposited them in a bank account.
Question:: I’m 18 and have had a bank acct for 2 years. I put my parents on the account so that they can use it too. Yesterday, the account was frozen because of a judgment against my parents. Is this legal?
Answer: Under Illinois law, a bank account is prima facie the property of each account holder. The account holder who owns the money has the right to show the court that it is his and not the other account holder’s. This should be done by motion, supported by affidavit or records showing where the money came from.
Also note that there is a “wildcard” exemption of $4,000 per account holder. This has to be claimed in writing, preferably by a motion to release $4,000.
Question: Can a title loan place suspend your license for non-payment of a loan?
Answer: Absolutely not. Your license cannot be suspended for nonpayment of an ordinary debt. It can only be suspended if you do not pay a judgment for damages arising out of the operation of a vehicle or for vehicle-related fines payable to a governmental entity.
Q. I forgot about a debt from 10 years ago. Now they are threatening to sue me. Can they get a judgement after 10 years?
A. The principal statutes of limitation in Illinois are 4 years for the sale or lease of goods (such as a car), 10 years for a contract wholly in writing, 5 years for a contract not wholly in writing (such as a credit card). Mortgages are enforceable for a longer period.
The statutes are measured from the last payment or advance.
Attempts to collect time-barred debts often violate the Fair Debt Collection Practices Act. There may be a violation if they sue, refer to a lawsuit, seek partial payment, or offer a “settlement.”
Question: I am behind on my car payments and feel my car is about to be repossessed. What should I do?
1 Call the creditor, explain the reasons for your financial issues, and see if something can be worked out. Make sure it is documented.
2. If your car is repossessed, and you have paid over 30% on at least a consumer-purpose contract, you have the right to reinstate the contract, once, by tendering the missed payments and repossession expenses.
3. Do not keep the purchase contract and other documents in the car
4. In the case of a sale, you are entitled to notice of the intended disposition of the car within 5 days after the repossession. If it is a consumer purchase, you also must be furnished with an “affidavit of defense” by which to object to the issuance of a repossession title and notice of your 30% right, if applicable.
5. Advance notice of repossession is not required in IL for a sale, but is for a lease.
6. If you cannot afford the car, you are better off selling it yourself than allowing it to be repossessed or turning it over to the creditor. Creditors generally sell repossessed property at auctions at a low price. You will get more selling it yourself. This includes trading it in for a less expensive vehicle. The creditor must agree to release its security in exchange for the sale proceeds if they are less than the amount outstanding, but if it is a genuine sale for what the car is worth, it will have serious problems collecting a deficiency if it refuses.