This article demonstrates why the Fair Debt Collection Practices Act is so important. Had this collection agency’s actions been covered by the FDCPA, we suspect they would have been successfully sued over this practice long ago, which would have put an end to it. Unfortunately, collections of municipal fines have been found not to be covered. However, there are other legal theories that we believe we can use to help the victims. If you believe you are a victim of these suburban parking ticket overcharges, please contact us.
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The American Association for Justice recently released a primer on forced arbitration in consumer contracts. As it points out, most Americans have unwittingly “consented” to give up their right to bring their grievances in the court system. Arbitration clauses are preventing Americans from challenging numerous unfair practices and small overcharges by large corporations.
If you received a postcard notice of a class settlement in a case called Johnson v. Midland, we suggest that you opt out and file your own case.
The settlement provides for $500,000 to be divided among class members located throughout the US. The notice does not state the number of class members, but upon inquiry we were told it was 500,000.
If 10% of the class makes claims, that is only $10 / person.
You have until November 6, 2013 to opt out. You should file your own case as soon as possible and try to get the full $1,000 statutory damages.
We already represent an opt out and are willing to file on behalf of anyone in Illinois, Wisconsin, or Indiana.
Follow the instructions on the postcard about how to opt out carefully.
We will need a copy of your postcard and opt out letter.
The violation alleged is that Midland violated the “validation notice” provision of the Fair Debt Collection Practices Act, 15 U.S.C. 1692g, in cases where it learned that it sent the required statutory validation notice to a wrong address (because the postal service returned it). If Midland later got a good address, it would dun the consumer at the correct address without sending the required notice of rights to the correct address. If you received a postcard, it is because Midland’s records show that happened to you.
On October 16, 2013, the new telemarketing regulations issued by the Federal Communications Commission finally took effect. They were issued in mid-2012 under the Telephone Consumer Protection Act, but their effectiveness was delayed.
The new regulations require a business to have a consumer’s express written consent before engaging in telemarketing communications to wireless phones, by text messages, or using an automatic telephone dialing system or prerecorded or artificial voice. They apply to ““all telephone calls using an automatic telephone dialing system or a prerecorded voice to deliver a telemarketing message to wireless numbers and residential lines.” (Text messages are considered calls.) Express written consent may consists of a manual signature or electronic authorization (text message, email, website form telephone key press or voice recording). It must be obtained after the consumer received clear and conspicuous disclosure of the consequences of providing the requested consent; and show that the consumer agreed unambiguously to receive such calls at a designated telephone number. It cannot be obtained as a condition of purchasing any good or service.
These rules change prior law, under which the prior structure under which could make prerecorded telemarketing calls to residential lines where the caller had an “established business relationship” with the recipient.
The new rules do not apply to debt collection calls.
Contact us if you receive a message by one of these means to which you have not given express written consent. Violations carry damages of up to $1500 per call.
Question: I am trying to pay a judgment that was entered against me in a small claims case from 2008. The plaintiff works overseas and will not provide his address. He refuses to make arrangements to accept it when he returns to United States every six months. I believe he is avoiding accepting so he can receive years of interest. How can I get this resolved?
Answer: Illinois law allows you to file a motion with the court (send a copy to the plaintiff at the last address shown on the court papers) and have the court enter an order allowing you to deposit the money with the clerk. The proper amount is the judgment plus costs plus 9% simple interest. The deposit stops the running of interest and entitles you to have the judgment marked satisfied and vacated and the case dismissed. If the plaintiff does not retrieve the deposit it will eventually escheat to the state, but that is not your concern.
Question: I received a summons from a process server that was not meant for me, but for my daughter re unpaid debts. The process server knew that I am not the person he was seeking. My daughter is an adult and no longer lives with me. What should I do if anything? I feel like I have placed myself in the middle of something that is not my business. How do I legally get myself out of the middle? What happens if I do nothing?
Answer: Your daughter should expect a bogus return of service to be filed and a default judgment to be sought. She needs to file a motion to quash. She would be well advised to get a lawyer to do this.
A summons can be served on a member of the household over 13 years of age. It cannot be served on a parent for an adult child that no longer lives with the parent.
You should send a letter with the case number and name to (1) plaintiff’s lawyer (shown on the summons) and (2) the clerk of the court, stating that the papers were delivered but that the defendant does not reside there. Use means providing proof of receipt with the lawyer.
Question: Can you be arrested for not showing up to court on a civil suit if you got a writ of summons but you did not sign for it?
- A signature is normally not required for valid service, unless by certified mail.
- The normal consequence of ignoring a summons is that a judgment is entered against you.
- Particularly if you are sued by a debt buyer, you should not default. You are admitting both that the plaintiff is the proper party to sue you and that the amount claimed is correct to the last penny. If you are not certain of either, you need to appear and defend. Debt buyers cannot prove anything. Even creditors may not be able to prove all that they claim.
- You cannot be arrested for not paying a debt or defaulting in a civil case.
- If you have a judgment against you and are served with a court order requiring your appearance to answer questions about your assets or income, you must appear, or an order for your arrest can be issued on a contempt citation.
Question: My husband died and he had a lot of credit cards. I did not know he had them. Do I have to pay them?
Answer: No. Only his estate, if he had enough money to open one, is liable.
Attempts are often made to put relative’s names on accounts or to collect from relatives. Such efforts are illegal under the Fair Debt Collection Practices Act.
Sometimes credit card companies claim that a spouse is liable under the Illinois Family Expense Act. It is questionable if this applies to bank credit, as opposed to credit extended by the actual seller. In any event, the federal Equal Credit Opportunity Act allows one spouse to contract for credit without the involvement of the other spouse, and takes precedence over state law.
Send each creditor a letter stating that the cardholder died and whether there is an estate. State that you do not wish to be contacted. Do not continue using any of his cards. Keep a copy of the letter and if possible send the letter by means providing proof of receipt (fax, certified, etc.).
Obtain all 3 of your credit reports and check if his cards or debts appear for any reason. If you are an authorized user on any of the accounts but not a cardholder, it may appear until you request removal by letter to the credit bureaus.
Question: A dog breeder advertised that a specific female dog was pregnant and to put a deposit down to reserve your pick of the litter. So I put a $1500 deposit down on a puppy that wasn’t born yet. When it came time for the female to deliver her puppies, the breeder notified me that his female had a miscarriage and there are no puppies. I asked for my deposit back and the breeder refused because his website states “all deposits are nonrefundable.” He gave me three options. 1) Use the $1500 for different puppy or adult from different parents that he owns. 2) Wait for him to try to breed those exact same dogs again (wait time approximately a year). 3) Or walk away with nothing. I have bank records of a $1500 wire transfer from my checking account to his and text messages to back everything up.
Answer: You are entitled to your money back. A “nonrefundable deposit” generally means that if you change your mind it is not refundable. (Even if a contract provides for a nonrefundable deposit, it may not entitle the seller to forfeit the entire purchase price, as opposed to a reasonable percentage to compensate him for having to sell the item again.) A “nonrefundable deposit” does not in any event mean that the seller can fail to deliver and keep your money. Under Illinois law (Uniform Commercial Code, section 2-613, 810 ILCS 5/2-613), “Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, . . . then (a) if the loss is total the contract is avoided . . . .” “Goods” includes the unborn young of animals, under Uniform Commercial Code section 2-105, 810 ILCS 5/2-105. The seller is not entitled to forfeit your money or force you to take an animal other than the specific one you purchased.
Illinois recently enacted a “lemon law” for pets which will take effect shortly; it gives consumers additional rights, such as where a purchased animal becomes ill or dies shortly after delivery.
Question: How can I insure that I am not liable for my mother’s debt? My mother has substantial credit card bills, which she is unable to pay from her limited income. She refuses to consider bankruptcy. I want to make sure that I cannot be held liable for any of her debt. I am concerned because I gave her a credit card to use for food and gas. The card has her name on it but is linked to my account. I pay that bill on time but does giving her the card imply that I am allowing her to open credit in her name using my information? If so, how can I protect myself?
Answer: You are not liable for her debts. Absent a signed writing Illinois law does not permit you to be held liable to pay the debts of another. Voluntarily paying some bills of another does not without more make you liable for any bills of that person that are not paid.