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    Edelman, Combs, Latturner, & Goodwin, LLC

    20 South Clark Street
    Suite 1500
    Chicago, IL 60603

    info@edcombs.com
    Phone: 312-739-4200
    Fax: 312-419-0379


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    Archive

    Premature debits by debt collector

    Monday, December 30th, 2013

    Question: Is it legal for a  debt  collector to take money out of your account before the payment dates that were set up to pay them back?

     

    Answer:  No.  What you describe may be illegal under federal and state law.  However the money was taken, it is a violation of the Fair Debt Collection Practices Act and state law.  If it was taken by means of an ACH debit, it was a violation of the Electronic Funds Transfer Act as well.  Consult an attorney.  Our firm regularly handles cases of this nature, without charge to the consumer.

    Liability for lost debit card

    Monday, December 30th, 2013

    Question: My new debit card was stolen because UPS delivered it to the wrong address.  Someone used it to withdraw money from my account without permission from me.  Who is liable and how can I get my money and from whom?

     

    Answer:  Under the Electronic Funds Transfer Act, you are not liable for unauthorized use of a debit card.  However, you must dispute the charges in writing with the bank that issued the card immediately.  If the bank refuses to credit your account, see a lawyer.    Our firm has represented consumers in such disputes on a number of occasions.

    Statutes of limitations

    Monday, December 30th, 2013

    Question: Is there a length of time after which a creditor can no longer attempt to collect a debt?

    Answer:  Common Illinois statutes of limitation are three years for a dishonored check, four years for a contract for the sale of goods (cars, natural gas), five years for a contract not wholly in writing, such as a credit card, and ten years for a contract wholly in writing, such as a note.  The time generally runs from breach or last payment, whichever is later, not from when the contract is made.  For example, if you purchase a car on time, make payments for one year, and then cease making payments, the four years runs from the last payment, if it was not on time (the breach was when you first did not make a payment on time, so the statute runs from the last payment), or 30 days after the last payment you made, if it was on time (there is no breach until the next payment is due and you do not make it).

    Creditors rights

    Monday, December 30th, 2013

    Question: About a year and half ago I signed a quit claim deed to my ex husband for the house as part of our divorce settlement. He lives there. I moved. We are still both on the mortgage. I have missed payments on my credit cards. If I get sued, do creditors have any claim on the house?

     

    Answer:  No.  Generally, only the person who obtained credit can have  a judgment entered against them, and a judgment is enforceable only against that person’s property.

     

    There are a couple of qualifications.  If property is transferred for the purpose of defrauding creditors, the transfer may not be effective.  A divorce settlement would not fall into this category.  Also, Illinois has a Family Expense Act that makes each spouse liable for the necessary expenses of the family, while they are living together.  It is unclear if this even applies to a lender, as opposed to a merchant who provides goods and services. Also, under Federal law one spouse has the right to obtain credit without the involvement of the other spouse, and this probably preempts the state law.

     

    Incorrect price in advertisement

    Monday, December 30th, 2013

    Question: Can a store change the price of an item after it is being sold and ask for additional payment?   I recently made a purchase of a bedroom set. Salesman offered price, I accepted price, signed off on purchase and paid with a credit card which has been charged in full. Later during day of purchase, another salesman called me to notify me the salesman who sold me the item had made a mistake and quoted me a price from a 2009 price sheet and therefore in order to continue with the purchase I would need to pay an additional $1000 or I could cancel the order. My response was I would not be canceling the order or paying any additional amount and as far as I was concerned, we had agreed upon a sale which needs to be fulfilled as is. My concern is if the store refuses to hold up their end of the sale do I have legal recourse to bring them to small claims court to sue them for delivery of the items ordered or for the cost of what a similar item will cost me elsewhere.

    Answer:  In this sort of  situation, the merchant is bound to the offer unless the purchaser knew or should have known of the error, in which case the purchaser is not entitled to take advantage of  the error.   The answer therefore depends on how obviously incorrect the price was for what was purchased.

     

    Credit card collections

    Monday, December 30th, 2013

    Question: What can I do on credit card collections?    We have a credit card debt from 5 years ago that we paid on until they stopped taking payments. We got a pre- legal notification letter saying they are sending us to an attorney. I want to know what we should do. They will not work with us unless we give them $750 and then $250 a month which we can’t do. I have heard most people don’t go to court but settle out of court. Should we go to court if and when it comes to that since they won’t accept what we can pay? Should we still pay what we can or is that not even beneficial now? I just don’t even know where to start. Any help would be appreciated!

    Answer:

    1.  Go to court.  Follow the instructions on the summons carefully.  Do not default.
    2. Are you being sued by the original creditor or a debt buyer?
    3.  If it is the original creditor, a settlement may be desirable.
    4. If it is a debt buyer,  it is unlikely to be able to prove anything, including ownership of any debt of yours.
    5. In either case, you should consult a lawyer before doing anything like offering money.  Our firm reviews cases of this nature without charge; we will often defend collection cases for a modest fee.

     

    Cosigner on student loan

    Monday, December 30th, 2013

    Question: What can be done if my son defaulted on a student loan which I co signed for and is now in the collection process?

     

    Answer:    The answer depends on who is trying to collect the loan.  In some cases, you are dealing with a debt buyer who cannot even prove that they are the holder of the loan.  Others should be settled or rehabilitated.  Also, note that under Illinois law, a cosigner is entitled to written notice of the principal debtor’s default before any collection activity (including credit reporting) is undertaken, so that the cosigner can protect his or her credit; noncompliance may bar any claim.  815 ILCS 505/2S.   Our firm may be able to assist you.

    Unlicensed practitioners

    Monday, December 30th, 2013

    Question: Am I obligated to pay for services rendered if I found out the security company I hired is not licensed?    I hired a security company and they provided an adequate service. I later found out that they were not properly licensed.

     

    Answer:  Under Illinois law, a party that violates a licensing requirement that is applicable to the transaction and is imposed to protect the public against unqualified persons cannot sue for compensation.   On the other hand, requirements that are primarily means of raising revenue do not have this consequence.  If the licensing requirement is that administered by the Department of Financial and Professional Regulation, you may have a defense. If it is a license to conduct business issued by the Secretary of State, it is probably not a defense if the company has a charter in good standing or authority as a foreign corporation by the time suit is filed (the company is barred from suing if it was required to have a charter or authorization as a foreign corporation and does not, but this is curable; the other sort of problem is not).  Whether the licensing requirement applies and is imposed to protect the public against unqualified persons can be a difficult question.  Contact us if you need advice in the area.

     

    Statute of limitations on a credit card

    Saturday, December 14th, 2013

    Question: How long does a credit card have to come to you for money owed you them?    Is there a limited time that a credit card company can try to collect a debt?

     

    Answer:  In Illinois, the statute of limitations on a credit card is 5 years, measured  from the later of default or last payment.

    Garnishment of joint bank account

    Saturday, December 14th, 2013

    Question: Can a bank account be garnished if it’s a joint account and the debt has nothing to do with me?

     

    Answer:    Yes.  In Illinois, the funds in a joint account are presumed to be 100% the property of each account holder.  All account holders have to be notified of the legal process.  They can then come into court and show who the funds actually belong to.

    Also note that there is a $4000 “wildcard” exemption that can be applied to a bank account.