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    Frquently Asked Questions

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    Edelman, Combs, Latturner, & Goodwin, LLC

    20 South Clark Street
    Suite 1500
    Chicago, IL 60603
    Phone: 312-739-4200
    Fax: 312-419-0379

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    Premature electronic funds transfer

    Monday, January 27th, 2014

    Question: Can a mortgage lender draft an overdue payment on a date other than the date you authorized and refuse to refund it?   I received a phone call from my mortgage company in an attempt to collect a past due payment. I authorized the payment for January 31 but they drafted it on the day of the conversation, January 20 instead. Because I have overdraft protection, this zeroed out my savings and dropped my checking account into the negative $200’s and dropping.


    Answer:  No.  What you describe is an Electronic Funds Transfer Act violation.   The amount of the payment may not be damages, but any harm caused by the premature debit, such as overdraft fees, is recoverable. There are also statutory damages.

    You should request your own bank to reverse the debit as unauthorized immediately.  Follow up any oral request in writing.  Also submit a “qualified written request” (so labelled) to the correspondence address of your mortgage company immediately, asking it to reverse the debit and pay any fees that result.

    Garnishment of joint bank account.

    Saturday, January 25th, 2014

    Question: Can a  joint account be garnished?  The issues that resulted in the judgment were my responsibility.  However, the money in the account is my girlfriend’s.


    Answer:   A joint account in Illinois is presumptively 100% owned by each account holder. Each account holder has the right to file a motion to show the actual ownership of the funds.  You need to support it with documents showing the source of the funds.

    Also note that there is a $4,000 “wildcard” exemption (735 ILCS 5/2-1001) applicable to a bank account, which must be claimed in writing. I suggest that you file a motion to release $4,000.

    There are also exemptions based on the source of the funds, e.g., social security, pension benefits, etc.

    Splitting claim

    Saturday, January 25th, 2014

    Question:  If I sue in small claims court for lost wages due to breach of contract in Small Claims Court for 2 months-July and August 2012, can I then filed another lawsuit  for breach of contract for lost wages from September 2012-January 2014?

    Answer:   Generally, no.  You cannot split a cause of action and subject the defendant to multiple lawsuits like that.



    HIgh-interest loans affecting credit

    Saturday, January 25th, 2014

    Question: Can a tribal online loan affect your credit score?  And if so, can you easily dispute it if you don’t live on tribal land?


    Answer:    In Illinois, tribal loans are illegal and unenforceable if the lender does not have a lending license, which none do.   I am not aware of any such lenders reporting to conventional credit bureaus.  If they did, I think there would be serious issues with a credit bureau accepting negative reports on such loans, as you have a legal right not to repay them.  I do suggest that people who have obtained such loans refuse to repay them in writing, stating that you are refusing to repay because they are illegal.  If you do find such a loan on your credit report, call us, as there is a likely violation of the Fair Credit Reporting Act.

    Calls from “process server”

    Saturday, January 25th, 2014

    Question: How can I find out if the call I got is legitimate  about being served with a case number listed?   Someone called me and told me they will be serving me and I need to call them to get the answer for any questions. I have had calls saying they have a summons for me and they will be by to serve me behind a debt.


    Answer:  Legitimate process servers are highly unlikely to make such calls.  The calls are  almost certainly from scammers who try to frighten people into giving account information to transfer funds.  You can  check if you are really being sued by noting down the case number, looking up / calling the clerk of the circuit court in the county of your residence, and seeing if it corresponds to a case number.  It probably won’t.  Report scam collection calls to the Attorney General/ Consumer Financial Protection Bureau/ Federal Trade Commission

    Liability for deficiency

    Saturday, January 25th, 2014

    Question: If your car was repossessed and then they sold the car, do you still have to pay for the car?    The place where I bought the car had it repossessed and then sold the car for what was owed and now they want me to pay for the car after they got it back and sold it. Do I still have to pay?


    Answer:  Assuming that the sale was commercially reasonable and that all notices were properly given, yes, you are liable for any deficiency.

    Liability on note signed by 2 people

    Saturday, January 25th, 2014

    Question: If two people sign a promissory note, can only one of them be sued for the full amount?

    Answer:   Yes, liability is joint and several by statute in Illinois.  This means that the creditor can sue either person for the full amount.


    Wednesday, January 8th, 2014

    Please contact us if you are being sued by Autovest on a motor vehicle retail installment contract.

    Internet payday loans

    Tuesday, January 7th, 2014

    Question: What should I do if I got served with court papers for breach of contract and fraud for multiple Internet payday loans?   I had several online payday loans prior to July 2013.  One became 2 and 2 became 10. I finally sought help from the attorney general after I realized they were illegal. Now I got served with court papers for breach of contract and fraud. Is this illegal?


    Answer:  Attempts to collect a loan made to an Illinois resident for nonbusiness purposes at more than 9% interest by a party who is not a licensed lender or a bank (most internet lenders are not licensed) may violate the Fair Debt Collection Practices Act and other laws.  In addition, you should have a defense to the claim against you.  The loan is not enforceable.  Do not default.  Consult an attorney immediately.


    Credit reporting

    Tuesday, January 7th, 2014

    Question: Can I have the charge off status be removed from my record if the creditor agreed to a mutual dismissal with prejudice?    I was sued by and counter sued my original creditor. We agreed to a mutual dismissal with prejudice. They are still listing my account in a charge off status. Can I have this removed?

    Answer:    A dismissal with prejudice should result in the removal of the “tradeline” from your credit report.  Send each credit  bureau a copy of the order with a written request for removal.  I suggest you use certified mail so you have proof of receipt.  If the item is not removed, you may have a good case under the Fair Credit Reporting Act.  The same would not apply to a dismissal without prejudice.