DEBT BLOG

Should I Pursue My FDCPA Claims?

Floyd W. Bybee — Tue, 23 Jun 2009 22:50:46 +0000

Many times I am asked by Arizona consumers whether they should pursue their claims under the federal Fair Debt Collection Practices Act (FDCPA). My answer is usually yes, and always starts with an explanation of the purposes of the Act.

FDCPA Intended to Protect Consumers From Abusive Collection Practices.

Congress stated that the purpose of the FDCPA is to protect all consumers from abusive, deceptive, and unfair debt collection practices. Even though not all consumers who are abused file suit, or even know they have any protection under the law, each individual consumer who does bring a claim under the law adds to the cumulative effect of coercing collection agencies into complying with the FDCPA. Thus, not only do these consumers recover the damages they have personally suffered as a result of the collection abuse, but the collection agencies are more likely to comply with the law in order to avoid similar court actions from other consumers.

Enforcement of the FDCPA also Levels the Playing Field for Ethical Debt Collectors.

Part of the benefit from enforcing the FDCPA, is that ethical collection agencies — the ones who are polite, and truthful, and respectful — are not put at a competitive disadvantage to those agencies who fail to comply with the FDCPA. That may not seem to be much of a benefit to the consumer, but it really is. Almost all Arizona consumers with whom I meet, are not looking for a way to avoid or delay paying a legitimate debt. They just need the harassment to stop so that they can keep their job, avoid filing bankruptcy, and eventually pay the debts they legally owe. So by raising the compliance level of all collection agencies, fewer Arizona consumers are suffering the effects of collection harassment and will ultimately be in a better position to pay the debts they owe.

I Can Help.

If you are an Arizona debtor and are being abused or harassed by a collection agency or other debt collector, find out what your rights are and whether you have any claims.

Feel free to call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 to set up a consultation.

ARIZONA CONSUMER SUES NATIONAL CREDIT SYSTEMS, INC. FOR COLLECTION ABUSE!

Floyd W. Bybee — Tue, 23 Jun 2009 22:27:41 +0000

My office recently filed suit on behalf of an Arizona consumer against National Credit Systems, Inc. out of Atlanta, Georgia for violations of the Fair Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA). The suit alleges that National Credit Systems reported an old apartment debt from 1994 on the consumer’s credit report in 2009, even though it was 15 years old. The consumer first learned of National Credit Systems’ reporting of the account when he was attempting to purchase a used Jeep.

FDCPA Prohibits False Credit Reporting.

The FDCPA prohibits debt collectors from reporting any credit information which it knows is false or which should be known to be false. In this case, National Credit Systems reported that the account was less than seven years old, and that the balance owed on the account was $790,977 — for an apartment lease!

FCRA Prohibits Credit Reporting of Collection Accounts More than Seven Years Old.

Accounts which went into collections or were charged off more than seven years prior cannot be reported on a consumer’s credit report. Here, National Credit Systems reported this account to the credit bureaus even though it was nearly fifteen years old at the time.

Debt Collectors Use Credit Reporting to Coerce Payment for Old or Out of Statute Debts.

It is common to see collection agencies or other debt collectors report to the credit bureaus old debts which are too old to sue on, and too old to be reported to the credit bureaus. They do this by misreporting the date of first delinquency to the credit bureaus so these old account slip onto the credit reports. Many times it is only after the consumer is denied credit that he learns that this misreporting has taken place. That is what happened in this case. His first notice that National Credit Systems reported this old debt to the credit bureaus is when he was told he could not get financing on his Jeep. By then, the damage has been done.

Do You Have Old Accounts Reporting on Your Credit Reports?

If you have not looked at your credit reports recently, you should. You can go to www.annualcreditreport.com to obtain your free credit report from each of the three national credit reporting agencies as provided by recent changes to the FCRA. Review your reports to see if any information is incorrect, or if anyone is looking at your credit report without permission.

Contact an Arizona Lawyer for Assistance.

If your credit reports show any significant errors, contact a local Arizona lawyer. He or she can assist you in reviewing your credit report to determine if your rights under the FDCPA or FCRA have been violated. He can also show you how to dispute the incorrect information with the credit bureaus.

If you believe that your credit report contains any significant errors, feel free to call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 to set up a consultation.

WHAT TO DO IF YOU HAVE BEEN SUED ON AN OLD CREDIT CARD DEBT?

Floyd W. Bybee — Tue, 23 Jun 2009 21:41:52 +0000

What To Do If You Have Been Sued?

Arizona Consumer Sued by Bartolini Finance for Deficiency on Auto Loan

Floyd W. Bybee — Wed, 03 Jun 2009 23:59:45 +0000

Bartolini Finance, d.b.a. CNAC AZ 101 (also known as J.D. Byrider), recently filed suit in the Highland Justice Court to collect a deficiency balance on a car loan that defaulted and was voluntarily repossessed in March 2003. Under Arizona law, the finance company had four years from the date of default to file suit. That meant that Bartolini’s suit needed to be filed prior to March 2007. It was filed two years late in February 2009.

Statute of Limitations is Four Years Under Arizona Law.

Arizona Revised Statutes Section 47-2725 states that suit on the breach of a contract for the sale of goods must be brought within four years. A financed car purchase falls under this provision of the Arizona law, and failure to make payments under the contract, or repossession is clearly a default. Thus, a lawsuit to collect on an auto loan must be brought within four years from the initial default date or it is too late.

Statute of Limitations is an Affirmative Defense.

Many banks and finance companies still file suit even though the statute of limitations has run because the statute of limitations defense must be raised in the lawsuit by the consumer, and if he fails to do so, then judgment can be entered in favor of the bank or finance company. They gamble that most consumers will not fight the lawsuit and that they will be able to get a judgment by default. Because most Arizona consumers do not know their rights, the gamble pays off.

Don’t Waive Your Rights!

Arizona law provides protection to consumers if a lawsuit is filed after the statute of limitations has run. Don’t waive those protections! Fight back!

If you have been recently sued on an old car loan to collect a deficiency balance, find out what your rights are. Please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation.

Arizona Statute of Limitations Law for Repossessed Car is Four Years

Floyd W. Bybee — Wed, 27 May 2009 21:19:31 +0000

Collecting a Deficiency Balance on a Car Loan.

When an Arizona consumer loses a car to repossession, the bank typically sells the car and applies the proceeds from the sale to the balance owing on the loan. If the car does not sell for enough to pay off the loan balance, the bank will usually try to collect this balance — known as a deficiency balance — from the Arizona consumer. Other times the bank will sell this “loan balance” to a third party or “bad debt buyer” who then tries to collect from the debtor.

The Lawsuit Must be Filed within Four Years of Default.

A creditor, whether the bank or a bad debt buyer, has only four years from the date of default to file suit against an Arizona debtor to collect the deficiency balance for a car loan. A.R.S. § 47-2725 states:

A. An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.

The cause of action accrues no later than when the car is repossessed. If a creditor repossesses the car then clearly it considers the account in default. However, in most situations payments have been missed for several months before the car is actually repossessed, so the four year statute of limitations period may have begun to run several months before the car is actually repossessed.

Statute of Limitations is an Affirmative Defense.

In order for a consumer to be protected from judgment under Arizona law, the defense of statute of limitations must be raised in the lawsuit by the consumer. If the consumer fails to assert the defense of statute of limitations, then the court may give the bank or debt buyer judgment.

Find Out if the Statute of Limitations Defense Applies to Your Case.

I regularly represent Arizona consumers who have been sued for deficiency balances on repossessed cars.

If you are an Arizona debtor who has recently been served with a lawsuit to collect an auto loan deficiency, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation.