SIX STEPS TO TAKE WHEN YOUR CAR IS REPOSSESSED IN ARIZONA
Debt Collectors Are Prohibited From Contacting Debtors Who Are Represented By An Attorney
/FDCPA Prohibits Contacting Represented Debtors
The federal Fair Debt Collection Practices Act or FDCPA prohibits a debt collector, which includes collection agencies, debt buyers, and collection lawyers, from contacting a debtor who they know or should know is represented by a lawyer. This knowledge may come from the debtor telling the collector he has a lawyer, or may come from prior efforts to collect the debt. In any event, a debt collector who contacts a represented debtor is subject to claims under the FDCPA, including statutory damages of up to $1,000, and any actual damages.
Portfolio Recovery Associates Sued For Collecting on a Settled Debt
/Portfolio Recovery Associates, LLC, or PRA is a huge debt buyer that files thousands of law suits every year to collect debts it has purchased for pennies on the dollar. PRA files hundreds of collection suits here in Arizona.
My office recently filed a case under the Fair Debt Collection Practices Act or FDCPA against PRA for attempting to collect an alleged balance on a judgment which had been settled in full, and which had been set aside by the justice court so there was no longer a judgment.
Collection Abuse Continues Against Arizona Consumers
As this case illustrates, collection abuse by collection agencies, zombie debt buyers, and their collection lawyers continues in spite of federal law prohibiting their actions. The FDCPA prohibits a debt collector --- including collection agencies, zombie debt buyers, and collection attorneys --- from misrepresenting that a debt is owed when it is not. The FDCPA also prohibits a debt collector from attempting to collect amounts not owe, including aksing for payment of a debt which has already been settled.
Maricopa County Superior Court Confirms Four Year Statute of Limitations in Auto Sales Contract
/Maricopa County Superior Court reaffirms Four Year Statute of Limitations in Deficiency Claim
In the Case of Autovest, LLC v. Randall, CV2014-013134, Maricopa County Judge Karen A. Mullins reaffirmed that the statute of limitations to collect on a deficiency balance for an auto loan after repossession is only four years. If the car was purchased using a Retail Installment Sales Contract, and the dealer arranged the financing, then the statute of limitations runs four years after the car is repossessed.
Complete Defense to Colleciton Action
In Arizona, if you are sued by a lender for a deficiency balance after repossession, and the lender has waited four years or more to file suit, they you should have a complete defense to the collection action. Meaning, you should be able to get the case dismissed and not owe anything.
National Collegiate Student Loan Trust Loses Arbitration on Statute of Limitations
/In a case where National Collegiate Student Loan Trust sued my client in Maricopa County Superior Court to collect on a private student loan, the arbitrator found in favor of the Arizona consumer and dismissed the claim.
Arizona Six-Year Statute of Limitations Applies to Private Student Loans.
The statute of limitations on a private student loan is the same as any other credit or contract obligation. Thus, if it is a written contract, signed in Arizona, the statute of limitations is usually six (6) years.
Arizona Four-Year Statute of Limitations Applies to Private Student Loans Incurred Outside of Arizona.
The exception to the six-year statute of limitations is a loan which was entered into in another state other than Arizona. For example, if you signed for the student loan while living in Oregon, then the Arizona four-year statute of limitations should apply.
National Collegiate Student Loan Trust sues Arizona consumers under under several different names, such as NCSLT 2006-1, 2006-3, 2007-2 or NCSLT 2007-4, etc.
Defending a Lawsuit filed by Autovest, LLC
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Have you been sued by Autovest, LLC?
Autovest has filed hundreds of lawsuits against Arizona debtors to collect deficiency balances on vehicles which were repossessed years ago. In many of the cases I have seen, the statute of limitations has passed. Meaning, you would have a complete defense to Autovest’s claim. Under Arizona law, an automobile lender generally has only four years after the repossession to file suit to collect any remaining balance. If it waits four years and 1 day, it is too late and you can get the case dismissed.
Why then would Autovest sue on accounts which are Past the Statute of Limitations?
One might wonder why Autovest would sue someone on a debt if it knew the statute of limitations had run. Well, under the rules in Arizona courts, if you – the debtor – do not answer the lawsuit and raise the defense of statute of limitation, the defense is waived, meaning Autovest can get a judgment which it can then collect on.
What should I do?
First off, do no wait to get help. If you wait too long, then Autovest can get its judgment and you will have to pay the old debt.
Second, make sure you contact an experienced consumer lawyer in your state to assist you. If the statute of limitations has run, some consumer lawyers will agree to defend these Autovest cases with little or no cost to you.
Third, make sure you are not one of Autovest’s victims. Get help now!
Asset Acceptance LLC Sued Arizona Consumer for Navy Federal Credit Union Account which is Past the Statute of Limitations
/Recent client inquiries reflect that Asset Acceptance LLC, a large national debt buyer who claims to have purchased a large portfolio of debts originating with the Navy Federal Credit Union, is suing Arizona debtors on these debts. In a recent case I investigated, it appears that the Navy debt is well beyond the applicable statute of limitations in Arizona for credit card debt which is now 6 years. Calls from other Arizona consumers confirms this may be happening on a regular basis.
Despite the underlying debt being stale (past the statute of limitations), Asset has filed suit using one of its Arizona law firms Fulton, Friedman & Gullace. It is common knowledge that many debt buyers file suit hoping that Arizona debtors will ignore the law suit and the debt buyer will obtain a default (meaning uncontested) judgment. Once the judgment is entered, the claim becomes valid and the debt buyer can garnish wages or bank accounts to collect the debt.
Not only are these stale debts completely defensible, the federal Fair Debt Collection Practices Act (FDCPA) prohibits such actions. Under the FDCPA, an Arizona consumer wrongfully sued by Asset can seek recovery of damages from the illegal lawsuit.
Protect Your Rights. If you are an Arizona consumer who has been sued by Asset Acceptance LLC on a Navy Federal Credit Union account, please contact Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation.
ASSET ACCEPTANCE LLC Loses Lawsuit and Refuses to Pay Arizona Consumer’s Judgment
/Asset Acceptance LLC filed suit against an Arizona consumer and lost, but now is refusing to pay the judgment entered by the court for the consumer’s court costs and attorney’s fees.
Asset Acceptance sued in early 2012 claiming it was the assigned owner of the consumer’s Capital One Bank account. At trial, Asset attempted to get documents entered into evidence, but the Globe Justice Court correctly ruled that Asset’s witness did not have the personal knowledge to authenticate the documents or to testify concerning Asset’s claimed ownership of the account. The court entered Judgment in the defendant’s favor and awarded attorney’s fees and court costs.
Collecting from the Collector.
Several demands have been made to Asset Acceptance’s lawyers, Fulton Friedman & Gullace, LLP, but no payment has been forthcoming. A garnishment was served on the attorneys Fulton Friedman & Gullace, LLP to force Asset to pay, but still no response from Asset or its lawyers.
If you have been recently sued by Asset Acceptance LLC or Fulton Friedman & Gullace, LLP, I may be able to help you. Please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation.
Statute of Limitations on Repossessions is 4 Years
/The Arizona Court of Appeals recently issued an opinion addressing the statute of limitations in a repossession lawsuit to collect a deficiency. The case is titled Baseline Financial Services v. Madison, 278 P.3d 321 (2012) (click here to see a copy of the Opinion).
The opinion clarifies that the statute of limitations in Arizona for the collection of a deficiency on a repossession is four years, not six as many of the collection agencies argue. See A.R.S. § 47-2725(A).
If you are an Arizona consumer who has been sued on a deficiency balance from a repossession, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation to determine if you have a defense to the lawsuit.
Can a Collection Agency or Attorney Serve Subpoena on Your Employer?
/I have recently seen several Arizona cases where the collection agency served a subpoena on the debtor’s employer prior to obtaining a judgment. This is generally illegal. The only third party contact a collection agency can make prior to taking a judgment is for obtaining location information. If they subpoena your employer and ask for anything more, then they will most likely have violated the Fair Debt Collection Practices Act, or FDCPA.
The subpoenas I have seen served on Arizona employers request information concerning the Arizona debtor’s bank account, drivers license, hire date, hourly rate, etc. All of this information is private and not allowed to be requested by subpoena in a collection lawsuit unless there has already been a judgment entered.
If you are an Arizona consumer who has been subjected to this kind of illegal invasion of your privacy, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation.
Equable Ascent Financial, LLC Loses Credit Card Collection Lawsuit and Ordered to Pay Consumer’s Attorney’s Fees.
/A Maricopa County justice court recently ruled in favor of an Arizona consumer in credit card collection lawsuit brought by debt buyer Equable Ascent Financial, LLC. The Court has also ordered the debt buyer Equable to pay the consumer’s attorney fees.
The court held that Equable’s witness and exhibits were insufficient to prove that it owned the consumer’s credit card account it was attempting to collect, and entered judgment in the debtor’s favor.
Here is a short list of Debt Buyers who file suit against Arizona consumers:
Acarta, LLC
Action Financial
Arrow Financial Services (Delaware)
Asset Acceptance LLC (Delaware)
Bauhinia, LLC
CACV of Colorado
Cavalry Portfolio Services
Collins Financial
Copper State Financial Management, LLC
Debt Buyers Inc.
DSS Financial Group, LLC (Arizona)
Elche, LLC
Equable Ascent Financial, LLC
Fortis Capital LLC( Florida)
Incepta LLC
LVNV Funding, LLC
Main Street Acquisition Corp. (Maryland)
Masari Investments
Midland Funding, LLC
Midland Credit Management
Nu Island Partners, LLC
Palisades Recovery
Persolve, LLC (Delaware)
Precision Recovery Analytics, Inc.
Portfolio Recovery
Rail Limited Partnership
Skystreak LLC
Unifund CCR Partners
Velocity Investments
Western States Financial Management LLC
Worldwide Asset Management
If you are an Arizona consumer who has recently been served with a lawsuit by a debt buyer, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation to see if you may have a defense to the lawsuit.
ARIZONA Consumer Sues Allied Interstate for FDCPA Violations
/We recently sued Allied Interstate LLC on behalf of an Arizona consumer for Allied's continuing attempts to collect a student loan debt that had been previously settled. The Arizona consumer had settled his legal obligation on the debt over four years previously, but Allied continued to try to collect the debt.
Under the Fair Debt Collection Practices Act ("FDCPA"), a collection agency that continues to collect on a debt that it knows has been satisfied violates the FDPCA.
The FDCPA provides the Arizona consumer with the right to collect statutory damages of up to $1,000, plus any actual damages suffered. The FDCPA also makes the debt collection agency, Allied Interstate in this case, pay for your attorney's fees and all the court costs.
If you are being harassed by a debt collection agency, feel free to call attorney Floyd W. Bybee to see if you have a claim. The call consultation is free with no obligation.
MIDLAND FUNDING LLC SUED OVER “ROBO-SIGNING”
/Minnesota Attorney General, Lori Swanson, filed suit against Midland Funding, LLC for filing false and unreliable affidavits in debt collection lawsuits. These are the same “robo-signed” and unverified affidavits Midland files in its Arizona collection cases.
To read the full story go here: http://www.startribune.com/business/118777379.html
What To Do If You Have Been Sued by Midland Funding, LLC
If you have recently been sued by Midland Funding, LLC, or its sister collection agency, Midland Credit Management, Inc., and believe that do not owe the debt, please contact Floyd W. Bybee at 480-756-8822
FTC Issues 2010 Annual Report on FDCPA to Congress
/FTC Reports Consumer Complaints Rise 17% in 2010
The Federal Trade Commission recently issued its 2011 annual report to Congress on the Fair Debt Collection Practices Act (FDCPA) showing that consumer debt collection complaints rose 17% in 2010. The federal agency received 140,036 debt collection complaints in 2010 compared to 119,609 in 2009. The FTC also reported that it received more complaints about the debt collection industry than from any other specific industry.
Top Categories for Debt Collection Complaints
The top areas which consumers complain about were:
• calling repeatedly or continuously
• misrepresenting the character, amount or status of the debt (including demanding a larger payment that is permitted by law)
• Failing to send consumers the required written notice about the debt and their rights
• Threatening dire consequences if the consumer fails to pay, including false threats of legal action, threats of criminal prosecution, wage garnishment, and damage to consumer’s credit rating.
• Failing to identify that it is a debt collector
• Revealing alleged debt to third parties, including family, friends, and co-workers.
• Calls to consumer’s place of employment
• Failing to verify disputed debts
• Continuing to contact consumers after receiving written notice to stop all communication.
FTC Provides Information About Consumers’ Rights
The FTC’s “Debt Collection FAQs: Guide for Consumers” brochure is available at http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm. The FTC also has an animated video that explains consumer rights regarding debt collection. It can be viewed at http://www.ftc.gov/debtcollection and http://www.youtube.com/ftcvideos.
FDCPA Prohibits Deceptive, Unfair and Abusive Practices
The FDCPA prohibits debt collectors from using any deceptive, unfair, and abusive collection tactics to attempt to collect a debt. Though the FTC may take action against some third-party debt collectors or debt-buyers, most Arizona consumers will obtain relief only from bringing a private action in Arizona courts.
If you are an Arizona consumer who has been contacted by a third-party debt collector or debt buyer and feel that their collection actions were deceptive, unfair, harassing, or abusive, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822.
Why Debt Buyers Must Provide Proof Debt Ownership
/I regularly hear debt buyers filing suit in Arizona courts argue that of course they own the old credit card account they are attempting to collect, otherwise they would not be suing the debtor. And, since they say the own the debt, they do not need to provide any verifiable proof of ownership.
When challenged to provide proof of ownership, these same debt buyers usually come up with a copy of a billing statement or two from the original credit card company, and argue that their possession of these billing statements proves that in fact they own the debt. Other times, they simply get one of their own employees to sign an affidavit saying that the debt buyer owns the debt.
Why You Must Require Debt Buyers to Provide Verifiable Proof of Ownership.
The Associate Press recently reported that the director of a Buffalo debt collection company had sold information from the company’s computer files to two illegitimate debt collectors who then scared consumers into paying made-up debts. There have been other reports of debt buyers selling the same account to two or more debt buyers, who both later attempt to collect on the same debt.
If you have been sued by a debt buyer, make them provide absolute proof that they are the rightful owner and assignee of the original credit card company. They will seldom be able or willing to do so.
If you are an Arizona consumer who has recently been served with a lawsuit by a debt buyer, please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a free phone consultation to see if you may have a defense to the lawsuit.
Arizona Federal Court finds Gurstel Staloch & Chargo Violated FDCPA.
/In a recently published decision, a federal Magistrate Judge for the District of Arizona found that Gurstel, Staloch & Chargo, P.A., now known as Gurstel Chargo, P.A., now known as Gurstel Law Firm, P.C., violated the Fair Debt Collection Practices Act (“FDCPA”) because it failed to ceased communications with the consumer after she notified Gurstel both verbally and in writing that she was represented by a lawyer. The Court also found that Gurstel violated the FDCPA by continuing to contact the consumer after she notified the firm that she disputed the debt, refused to pay, and demanded that Gurstel cease all communications with her.
A copy of the decision can be reviewed here.
If you have sent a letter (certified return receipt requested) to a debt collection company telling it that you refuse to pay the debt, or that you want it to stop contacting you, but they continue to call and / or write you, then it is violating the FDCPA as Gurstel did in this case. You would be able to sue the collection agency and recover damages.
If you are an Arizona consumer being harassed or threatened by a debt collector or junk-debt buyer regarding a consumer debt, I can help. Please call Floyd W. Bybee at 480-756-8822
Bartolini Finance Still Filing Suits on Old Debts.
/Recently I have been contacted by several Arizona consumers who have been sued by Bartolini Finance, also known as CNAC and J.D. Byrider. In each instance, the account defaulted over four years prior to the suit being filed.
Arizona Statute of Limitations for Collecting on a Repossession is Four (4) Years.
A.R.S. § 47-2725 requires that Bartolini Finance file its suit to collect the remaining balance on your car loan within four (4) years after the repossession.
In the cases I am seeing right now, the repossession took place nearly six (6) years ago, meaning that Bartolini is too late. However, if the Arizona debtor does not properly respond to the lawsuit, then Bartolini is able to get a default judgment. This is obviously what Bartolini is hoping for.
Don’t Let Bartolini Get a Default Judgment Against You!
The large majority of the cases Bartolini Finance has filed have ended up with default judgments. Many times the interest that has accrued far exceeds the amount of the original debt.
You must file an appropriate answer with the Court in order to avoid judgment being entered against you.
Hire a Lawyer to Assist You.
If you have been sued by Bartolini Finance, hire the assistance of an attorney. There are several consumer lawyers in Maricopa County which are capable of defending these Bartolini Finance lawsuits. The cost of hiring a lawyer is usually much less than the amount of the potential judgment. Plus, with the damage to your credit file by having a judgment entered, the cost of obtaining legal counsel is usually well worth it.
I would be glad to assist you in reviewing your case to see if you have a valid defense. Please call Floyd W. Bybee at the BYBEE LAW CENTER, PLC (480) 756-8822 for a consultation.
Debt Collection Harassment and Abuse Top Complaints to State Attorneys General.
/The National Association of Attorneys General recently released their Top 10 List of Consumer Complaints for 2008, and Debt collection was number one.
The complete list is:
1. Debt Collection
2. Auto Sales
3. Home Repair/Construction
4. Credit Cards (tie)
5. Internet Goods and Services (tie)
6. Predatory Lending/Mortgages
7. Telemarketing/Do-Not-Call
8. Auto Repair
9. Auto Warranties (tie)
10. Telecom/Slamming/Cramming (tie)
Collection Harassment and Abuse Likely to Continue.
With the current economic struggles, Arizona consumers will likely continue to see increased collection harassment and abuse from collection agencies and junk-debt buyers. With fewer dollars in consumer’s pockets, collectors are resorting to more aggressive, abusive and threatening tactics to wrestle the limited money away from the consumer into their own pockets.
Report to Your State’s Attorney General.
If you have been subjected to collection harassment or abuse, you can report it to your own state’s attorney general. For you Arizona consumers, you can file a complant at the Arizona Attorney General's website.
Remedies Under the Fair Debt Collection Practices Act or FDCPA.
Remember, you also have the right to file suit against the abusive debt collector and recover damages under the Fair Debt Collection Practices Act or FDCPA.
If you are an Arizona debtor current being harassed or abused by a debt collector or junk-debt buyer regarding a consumer debt, I can help. I offer a free consultation.
Call Floyd W. Bybee at 480-756-8822
Two More Courts Hold that Statute of Limitations on Credit Cards in Arizona is Three (3) Years.
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Arizona Legislature Changes Statute of Limitations on Credit Card Accounts.
The Arizona Legislature recently changed the law to make most credit card collection cases subject to a six year statute of limitations. A.R.S. Sec. 12-548 now states that "if the indebtedness is evidenced by or founded on . . . a credit card. . ." it is subject to the six year statute of limitations.
The following cases will no longer provide the persuasive precedent that we have previously enjoyed.
Recent Cases.
The East Mesa Justice Court in Maricopa County recently followed the holding in the DSS Financial v. Walrod case and dismissed a collection lawsuit brought by a bad-debt buyer, Action Financial, LLC, holding that the statute of limitations on a credit card account is three (3) years. See Action Financial, LLC v. Long, CC2008005084.
The West Mesa Justice Court of Maricopa County also recently held that the debt, which was an old credit card account, was an open account and thus barred by the three (3) year statute of limitations under A.R.S. § 12-543. See Action Financial, LLC v. Foran, CC2008189319.
The holdings in these two cases do not conclusively settle the debate over the statute of limitations on a credit card debt in Arizona. However, as more and more Arizona courts hold that credit card debts are subject to the three (3) year statute of limitations, bad-debt buyers will be less likely to file these stale suits, or at least more likely to dismiss them if challenged.
What to Do If You Have Been Sued on an Old Credit Card Debt?
The worst thing you can do is do nothing. That is what these bad-debt buyers hope you will do – nothing, so that they will get their judgment. Once a judgment is entered, and unless it is set aside by the court, the debt now becomes collectible even if the debt was stale and beyond the statute of limitations, and uncollectible, when the case was filed. So you must do SOMETHING.
The best something is to fight back. You may have one or more defenses to the suit. The debt may be old, such as the cases noted above, or the bad-debt buyer may not be able to prove that it is the current owner of the debt. Other defenses include identify theft, unauthorized use of the credit card, or fraud.
Help For Arizona Consumers is Available.
Many Arizona consumers believe that they cannot afford to hire an attorney to assist them in defending the lawsuit. However, there are several attorneys in the Mesa-Phoenix area who defend consumers in these debt collection cases, and their fees are reasonable, and likely to be a much better alternative than to have an unwarranted judgment entered against you.
Floyd Bybee of the BYBEE LAW CENTER, PLC represents Arizona consumers who have been sued on old credit card accounts.
If you would like a free phone consultation to see if you might have a defense to the lawsuit, please call (480) 756-8822.
Should I Pursue My FDCPA Claims?
/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.
