Here is a link to an article which describes perfectly what many of our clients have gone through at the hands of mortgage companies trying to get a loan modification. According to the article, an elderly homeowner went through a lengthy, expensive process to get a loan modification from Bank of America. Her loan was then transferred to Nationstar, who would not honor it, and made her start over, only to eventually foreclose on her. We have heard similar stories here at Edelman, Combs, Latturner & Goodwin, LLC. If you have a loan modification that is not being honored, get legal help right away. We recommend sending a “qualified written request” to the mortgage company asking them to solve the problem and honor the loan modification, along with saving the loan modification payments if they are no longer being accepted. If the mortgage company does not correct the problems, you can then sue for damages and attorney’s fees, which means that consumer law attorneys can handle the case on a contingency basis. Along with forcing the mortgage company to honor the loan modification, a lawsuit can also help insure that any credit reporting problems caused by the mishandling of the loan modification are corrected.
Question: Can I sue if I was served for a debt that was not mine? I was served with a summons and complaint for a debt that was not mine. I have the same first name, middle initial, and last name as the debtor. It was embarrassing because they left the summons with a friend who was staying at my house. Can I sue for this?
Answer: The first thing you need to do is win the collection case. You should consult an attorney immediately. You or the attorney needs to appear at the time and place specified in the summons and explain that the debt is not yours. If the claim is for over $10,000, a written answer is required and you should so state. If it is for under $10,000, you have the option of filing a document stating that you are not the debtor.
The next thing you need to do is obtain copies of all three of your credit reports and see if there is any information on them that is not yours. You should make a list of all such items and submit it to each credit bureau with a request that they delete the items. Send a letter rather than use the web sites of the credit bureaus. Also request that each credit bureau put a fraud alert on your report, so that you will be contacted if any attempt is made to obtain credit associated with your name.
Possible reasons for the problem include (a) mixing of files by credit bureaus, which identify information using “algorithms” that are imprecise and allow information to be retrieved based on less than a 100% match of name and Social Security Number, (b) bad skip tracing by the debt collector, (c) identity theft. It is not possible to determine which is the case without investigation.
You may have a claim. It could be against the debt collector, one or more credit bureaus, or someone that extended credit. We handle such cases and normally take them on a contingency, as it is possible to recover attorney’s fees against the other party.
Question: How can I remove a judgement when it is the result of identity theft? We have just found out that a company that we know nothing about was awarded a judgment against my wife. We know this is identity theft. We filed a police report and a report with the FTC. Someone used my wife’s Social security number but it isn’t my wife’s. How do we handle this? Unfortunately, they are assuming we are guilty and are treating us as such. But this is identity theft.
Answer: Get a copy of the court file and find out what it shows regarding service of process. If your wife (as opposed to the identity thief) was not served, file a motion to quash with supporting affidavits and documentation showing that she was not served. There is a corroboration requirement; for example, if the address of service was not hers, you need a lease or deed showing where you did live. You may want to get an attorney to do this.
A judgment obtained without service of process is void and can be attacked at any time. However, you should act as quickly as possible.
Your wife should immediately obtain all 3 of her credit reports and see if there is anything on them that is not hers. If so, fill out the identity theft affidavit on the form prescribed by the FTC (www.ftc.gov) and send it and the police report to each of the 3 credit bureaus with a list of what is not hers and a request that the items be removed. Send it in writing, rather than using the bureaus’ web sites.
Question: I was served papers to go to court to say why the creditor should not revive an old judgment. I had paid the judgment to another lawyer that previously represented the creditor. What should I do.
Answer: File a written objection stating that you paid the judgment. Attach proof of payment if you can. Request in writing an accounting of all credits and debits on the judgment, which you have an absolute right to under Illinois law. Appear in court on the date in question and explain that you believe the judgment has been paid.
A large Chicago collection firm, Friedman & Wexler, went out of business several years ago after creditor-clients alleged that 2 lawyers with the firm failed to turn over funds that had been collected from consumers. The 2 lawyers were charged with misconduct by the Attorney Registration & Disciplinary Commission and surrendered their licenses. It does not appear that they accounted for all funds received to creditors. You are nevertheless entitled to credit for funds paid to them. If the case was previously handled by Friedman & Wexler, the creditor may have a very hard time showing anything is still owed.
Attempting to collect a debt that is not owed is a violation of the Fair Debt Collection Practices Act.
Question:: My vehicle got repossessed last week and I called the bank today to pay off the past due amount I owed so I could get it back. They said I would have to pay the entire balance of the vehicle off to get it back. Are they allowed to do that?
Answer: Under Illinois law, if you are purchasing (not leasing) a vehicle, you have the right, if you have paid more than 30% of the payments on a vehicle (counting the down payment and any trade in as part of both numerator and denominator), to reinstate a contract once by tendering the missed payments and repossession expenses. You have to be given notice of that right, and have about 15 days to exercise it.
Question: I bought a car from a dealer and signed a retail installment contract. The car dealer said he would sell the contract to a bank. The car dealer called me giving me a list of lies they want me to tell the bank that’s financing the car, such as: they told them I worked for a different company, making two times more than what I do make, and they said my car has all these upgraded features that it does not have. I wrote it all down and hung up saying OK. But I am not going to do that. I want to know what’s the best way to proceed? And will I be entitled to get my down deposit back? The bank financing it has been calling to confirm my contract but I haven’t answered yet.
Answer: What the dealer asked you to do is a serious crime under both federal and state law. The dealer submitted false financial information to the bank and wants you to participate in the fraud.
Contact the bank and tell them that you have reason to believe that the dealer submitted an inaccurate application and that you want to make sure they have accurate information. Follow up in writing so that you have a record that you disclosed the true facts to the bank.
Many dealers make their sales contingent on their ability to find a bank to purchase the contract. If so, the dealer may be entitled to get the car back. You are entitled to get your down payment and tradein back, without any deductions.
You really do not want to have anything to do with this dealer.
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