Debtor & Creditor Law

Our attorneys have vast experience and knowledge of consumer laws and the litigation experience to prosecute or defend a debt collection lawsuit. We will zealously represent you in court, or work to negotiate a favorable settlement without having to go through costly litigation. Retaining experienced counsel can often result in saving thousands of dollars compared to representing yourself in a debt collection matter. Contact the attorneys of Cleveland Lehner Cassidy for a free consultation to discuss your matter.
• Commercial and Consumer collections
• Debt collection defense
• Negotiations / Settlements
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Debtor/Creditor Resources

Defending a Consumer Collections case

When you receive notice that you’re being sued because of a debt, it’s important to take that seriously and not to ignore the lawsuit. If you ignore it, the creditor can get a default judgment against you, which means they win the lawsuit just because you didn’t respond. A default judgment then allows them to take further actions to get the money from you, including garnishing your paycheck or bank account, or putting a lien on your property. 
If you talk to an attorney you may find that you have options you didn’t expect. We will look at the facts and evidence in the case, and may be able to get your case dismissed, or negotiate with the creditor to settle your debt in a way that is affordable for you. Some possible defenses for a debt collection lawsuit include:

You already paid the debt – If you have documentation that you paid the debt in full, then your case can be dismissed.
You never owed the debt – It may be that the creditor named you in the lawsuit because of a mistake. If you can show that the debt isn’t yours, your case may be dismissed.
The statute of limitations has expired – Civil lawsuits to collect debts have to be filed within a certain amount of time or the creditor loses the right to sue you. That deadline is called a statute of limitations. If a creditor sues you after the statute of limitations has expired, then your case can be dismissed.
The creditor doesn’t own the debt – To file a lawsuit, a plaintiff has to have standing, or in other words a legal status that gives the person or company the right to file a lawsuit. For a lawsuit regarding a debt, the plaintiff has to own the debt to have the right to sue. If the entity suing you doesn’t own the debt, your case can be dismissed.

Defending a Consumer Collections case

A judgment is a court’s final determination of the rights and obligations of the parties in a case. There are many types of judgments depending on the type of claim at issue in a case. In the case of a suit filed by a creditor against a debtor, there are a few types of judgments that are relevant including but not limited to:

Default Judgment – A default judgment is a judgment that is entered against a defendant who fails to plead or otherwise defend against the plaintiff’s claim. When a lawsuit is filed by a plaintiff the defendant has a deadline to file a response and present a defense. If the defendant fails to do so, the plaintiff can obtain a judgment against them.
Agreed/Consent Judgment – An agreed or consent judgment is common in cases where a creditor sues a debtor. If the parties are able to agree to a payment plan or settlement to be paid over time, the parties will agree that a judgment be rendered against a debtor and the creditor agrees that they will not take action to collect on the judgment as long as the debtor pays as agreed upon.
Summary Judgment – When a case is being litigated and the defendant has filed an answer admitting or denying the allegations, either party can file for summary judgment. This means that the parties are seeking a judgment without a trial based upon the documents that have been filed with the court.

Once a judgment is obtained, there is a process that a creditor must undertake to collect on that judgment. During this process a creditor may garnish wages, place a lien on a bank account to collect money from the account and place a lien on or seize an individual’s real property. Often a judgment can be avoided with the help of an attorney. If you have a judgment entered against you, consulting with an attorney is still beneficial as it is still possible to prevent some of the collection efforts mentioned above.

Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act, also known as the TCPA is a federal statute that was passed in 1991, and is designed to protect consumers from various types of telephone solicitations. 

The TCPA generally prohibits certain types of marketing using:
1. Automatic dialing systems without meeting the very strict requirements of the TCPA:
2. Artificial or prerecorded voice messages without prior written consent,
3. Text messages of unsolicited advertisements, and;
4. Fax machines to send unsolicited advertisements without prior written consent.

It is important to note that not all such marketing using these devises is prohibited, and a consumer law attorney will need to analyze the facts of each particular case to find out if there is indeed a violation.

The Telephone Consumer Protection Act is also the act that created the “Do Not Call List.” The TCPA puts guidelines on the telemarketer as to when it is allowed to call a potential customer. The business is only permitted to call between 8:00AM and 9:00PM. Further, if the consumer decided he or she no longer desires calls from the telemarketer, he or she can demand the telemarketer quit calling. The telemarketer must keep the consumer’s name on the list indefinitely, and is not permitted to call that individual in the future.

There are civil statutory damages for violations of the TCPA. The TCPA itself allows for $500 per violation in addition to attorney fees and any actual or punitive damages. It is worth pursuing your rights if you believe a telemarketer has violated the TCPA.

Truth in Lending Act

The Truth in Lending Act requires lenders to give you certain information up front before you finalize a loan. That document is called a Truth in Lending Statement, it provides the consumer with details about the loan or credit card.

The Truth in Lending Act protects consumers by giving them the information they need to evaluate the terms of a potential loan or line of credit. It also is designed to protect consumers from fraudulent or deceptive credit practices. 

Good Faith Estimate/Truth in Lending Statement
Among the key pieces of information that the Truth in Lending Statement is supposed to show you includes:

Annual Percentage Rate – This tells you how much you’re paying for your loan as a yearly rate. People often mistake this for their interest rate, but the APR also includes items such as closing costs for your loan, totaled up and then divided by the number of years you’ll be repaying the loan.
Finance Charge – This is the total amount your loan will cost you in addition to the principal over the life of the loan, including the total amount of interest plus any prepaid finance charges or closing costs.
Amount Financed – This is the base amount you are borrowing, not including any charges you pay at closing since those are being prepaid.
Number of Payments – This is the total number of payments you’ll have to make. For example, a 30-year mortgage would be 360 payments, or 12 monthly payments X 30 years.
Total of Payments – This tells you the total sum of money you’ll pay for the loan, including interest and any add-ons such as mortgage insurance.
Penalties – This includes what you’ll pay as late payment penalties, and whether there is a penalty for pre-paying all or part of the loan.

Right of Rescission in the Truth in Lending Act

Another important thing that the Truth in Lending Act does for consumers is that when you take out a home equity line of credit or refinance your mortgage with a different lender, the act gives you the right to cancel that transaction within three days after your closing. That right is known as the right of rescission. The idea is to give consumers a cooling off period for these types of transactions that give lenders a security interest in their homes. The cooling off period does not apply when you take out a mortgage to buy a home or when you refinance with your existing mortgage company.

Truth in Lending Act Violations

The law allows the recovery of actual damages, or in other words damages for a loss that you can prove. 

The law also allows you to potentially recover statutory damages for some violations of the Truth in Lending Act regarding disclosures. Statutory damages fall in the range of $100 to $1,000 for loans not secured by residential real estate, or $200 to $2,000 for home mortgages.
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