Debt Collector’s Proof of Claim Raises FDCPA Liability

Shaya final (1)The 11th Circuit Court of Appeals recently held that a debt collector who files a proof of claim in a bankruptcy proceeding violates the Fair Debt Collection Practices Act (“FDCPA”) when the claim is for a time barred debt.  The case is  Johnson v. Midland Funding.

When filing bankruptcy, the bankruptcy code permits a creditor who wants to have a claim for repayment from the debtor to file what is called a proof of claim.  This is an assertion that the debtor owes the creditor money.  However, an issue arises when the creditor is a debt collector and files a claim for an amount that is beyond the applicable statute of limitations.  The reason is that Fair Debt Collection Practices Act prohibits debt collectors from using any “false, deceptive, or misleading representation or means in connection with the collection of any debt.”

The Court found that there was no conflict between the FDCPA and the bankruptcy code.  The filing of a proof of claim is misleading and is attempting to collect a debt which the creditor wasn’t legally entitled to collect due to it being beyond the statute of limitations, which is an FDCPA violation.

If you are being harassed for a Miami debt by a debt collector or any other party, feel free to contact The Law Office of Shaya Markovic, P.A., for a free consultation.  There is no fee for my office to represent you in debt collector harassment cases.  My office fights and sues debt collectors for violating debt collection laws.  The Law Office of Shaya Markovic, P.A.  (786)529-2176.

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Defend Cavalry SPV I, LLC Lawsuits!

Have you been sued in Miami Dade or Broward for a Cavalry SPV I Lawsuit?  The Law Offices of Shaya Markovic, P.A. fights Cavalry SPV I, LLC lawsuits.  In many cases, our office has had success in getting these cases dismissed.

As with most debt buyer cases, there are many defenses that could be raised on your behalf.  Not only does our firm look to get Cavalry SPV I cases dismissed, but if there are any violations of any consumer debt protection laws my office will Sue Cavalry SPV I for violating these laws.  These include violations of the Telephone Consumer Protection Act, Fair Debt Collection Practices Act, and the Florida Consumer Collection Practices Act.

Cavalry SPV I is a debt buyer and thus does not directly loan money to individuals.  Rather they will buy the debt from another company such as a credit card after their debt has been charged off.  If you have been sued by Cavalry SPV I call The Law Offices of Shaya Markovic, P.A. at (786)529-2176 for a free consultation.  

 

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Client Pay Nothing on $32,000 Credit Card Lawsuit

Shaya final (1)I’m excited to write about a very happy client who received  CACH, LLC lawsuit for more than $32,000.  The client wasn’t sure when he made the last payment but knew it was made a long time ago.  Our office felt there may be a Fair Debt Collection Practices Act violation for trying to collect a debt beyond the statute of limitations (4 years in this case).

 

Our office informed opposing counsel of our concern and file a counterclaim for violation of the FDCPA.   After some negotiations and back and forth, CACH agreed to dismiss the lawsuit without the client having to pay any money.

There are many laws designed to protect consumers that allow you to defend your lawsuit from debt collectors.  The Law Office of Shaya Markovic fights debt collectors.  We review your case for free and look for any defenses or violations of debt collection laws to get the best results possible.  If you have been sued for a Miami Credit Card Lawsuit or Broward Credit Card Lawsuit, call The Law Office of Shaya Markovic, P.A. for a free consultation.  We look forward to meeting and representing you!

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$123,274.44 Loan Secured By Home Settles for $5,000

images (1)A recent settlement for a client of mine was also one of my more satisfying resolutions to a case.  My client took out a loan which was secured by her home for the purposes of opening a business.  The business opened right before the recession and ended up closing shortly thereafter due to the downturn of the economy.  My client had another, smaller loan, with the same bank and continued to make payments on the other loan, but was unable to also make the payments on the loan secured by her home. While making one of her payments, the teller credited it to account secured by the home instead of the smaller loan she intending to pay (this becomes important later).  My client failed to realize this mistake at the time.

Subsequently, the bank sued my client for the debt on the larger loan secured by her home.  On behalf of my client, my office raised numerous affirmative defenses including that the debt was beyond the applicable statute of limitations.  The bank replied that the one payment my client made extended the limitations period from that point and that the statute of limitations defense did not apply.  We of course disagreed and threatened to file a counter lawsuit under the Fair Debt Collection Practices Act.

After engaging in discovery with the bank, we were able to use the statute of limitations as leverage to negotiate the debt (of course that wasn’t our only leverage in negotiations). Ultimately we were able to agree on a settlement of $5,000.

If you have been sued for a Debt in South Florida our office may be able to help you.  Call the Law Office of Shaya Markovic, P.A. for a free consultation at (786)529-2176.  We have offices in Hollywood, Hialeah and Miami Gardens to best serve your needs.  Call now for a free consultation!

 

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$10,000 Discover Credit Card Lawsuit Settled For Fraction of Total Amount

Recently my office was able to negotiate a settlement of a Broward County credit card lawsuit that was brought by Discover Card.  Before I reveal the amount of the settlement I want to take a brief  moment to explain the two different types of cases that come through my office and the difference between them.

The first type of case is what is called an original creditor cases.  These cases are filed by the company that directly loans money to the debtor/defendant.  The name of the Plaintiff in this type of case would be American Express, Discover Card, Bank of America amongst many others. The other type of case is called a debt collector cases.  These are cases that are filed by companies that don’t loan the money but rather purchase debts from the original creditor usually for a large discount.  These  are brought by companies such as Portfolio Recovery Associates, Midland Funding, Asset Acceptance, National Collegiate Student Loan Trust, and many others.  From a legal perspective and when it comes to defending these cases, the debt collector cases provide for much stronger defenses.  The reason being is that the more a debt is sold and transferred the more people who are required to attest to the correct balance of the debt and it becomes more difficult for the Plaintiff to prove ownership of the debt.  Since these cases have many potential flaws they are easier to win if they go to trial and thus facilitates better possible settlements.

Back to the case that I recently settled.  This was an original creditor case with very limited defenses available.  After engaging in some limited litigation my office was able to settle our client’s case for $2,000 and a payment plan.  Although we always would love to get all our cases dismissed and our clients not paying any amount it’s not always the case.

If you have been served with a Broward or Miami credit card lawsuit call The Law Office of Shaya Markovic, P.A. at (786)529-2176 for a free consultation.  My office is open during the evenings and weekends for your convenience.

 

 

 

 

 

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$12,045.87 NCEP, LLC Lawsuit Dismissed; Plaintiff Pays Defendant’s Attorney Fees

Another great win for a consumer against a debt collector trying to collect a South Florida debt.  NCEP, LLC filed suit against our client in Broward court seeking in excess of $12,000.00 for a payday loan that was taken out in 2006.  The Client retained our office, The Law Offices of Shaya Markovic, P.A., to defend him in the case.  The client informed our office that the reason he stopped paying on the account was due to the company closing down and not leaving any location to continue making payments on the account but that he was still willing to make a payment on the account to resolve the litigation.

However, after a review of the lawsuit,  it seemed that there were numerous potential violations of the Fair Debt Collection Practices Act.  Our office immediately filed a counter lawsuit claiming that NCEP was attempting to collect interest at a rate that exceed the amount permitted under Florida law (18%) and that they were attempting to collect a debt that was beyond the Statute of Limitations.

During the lawsuit, NCEP sold the debt to Atlantic Credit & Finance Special Unit III, LLC (“Atlantic Credit”) who continued with the litigation.  During the negotiations with their counsel, Atlantic Credit agreed to dismiss the lawsuit against my client and pay attorney fees to The Law Office of Shaya Markovic, P.A.

If you have been sued your first step should always be to speak with an attorney that is familiar with debt collection laws.  Although many attorneys could easily have settled the case, not all would be aware of the defenses that exist or willing to file a counter lawsuit.  If you are being sued or feel you are being harassed for a Broward or Miami debt contact The Law Offices of Shaya Markovic, P.A. for a free consultation at (786)529-2176.

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$8,0000 Debt Case Gets Dismissed

It’s always nice to get my client a better results than they expect.  Today,  I had my most recent victory against Portfolio Recovery Associates.  Portfolio Recovery Associates sued my client seeking more than $8,000 as a result of an alleged credit card debt.    After receiving the debt lawsuit, the client hired The Law Office of Shaya Markovic, P.A. to defend his credit card lawsuit. During the initial consultation, the client said that in order to make the case go away he was willing to make a payment of a few thousand dollars. Our office immediately realized numerous defenses to the credit card lawsuit and filed a Motion to Dismiss the Complaint.  Yesterday, was the day of the hearing on our Motion to Dismiss and I’m happy to report that after discussing the weaknesses of their case  Portfolio Recovery Associates backed down and agreed to dismiss the case with prejudice, meaning they can never file this lawsuit again against my client.

Here is the Order:

dispo redect img

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Double Win For Client Against Portfolio Recovery Associates

         I don’t typically write about specific cases, however, I decided to begin in the hopes that more consumers  would contact an attorney to consult on their case before it’s too late.  There are often numerous defenses available in consumer collection/harassment cases and laws that apply that many attorneys, let alone non-attorney consumers, may not be aware exists.

         Recently, A client of mine was sued by Portfolio Recovery Associates (“Portfolio”) and after some delay retained my office to fight the lawsuit.  During our discussions it was disclosed that Portfolio was also contacting the client regarding another case, unrelated the to current lawsuit.  The client explained that she thought she had settled the second case with another debt collector called RPM.  The client informed Portfolio that she believed that the account was settled and shouldn’t be responsible to pay again.  Portfolio responded that they knew nothing about any settlement and she still needed to pay the debt or a lawsuit would be filed. (typical debt collector bullying).

I agreed to represent the client on a contingency basis (no fee to the client).  My office filed a federal lawsuit in the Southern District of Florida under the Fair Debt Collection Practices Act (FDCPA).  The FDCPA is a consumer protection law that prevents debt collectors from engaging in certain types of harassing activities.   Our lawsuit claimed that Portfolio engaged in false, deceptive and misleading representations in connection with this debt, and attempted to collect an amount not authorized by law. As expected, Portfolio responded to the lawsuit denying the allegations – at first.

The end result for the client was that Portfolio agreed to dismiss the first lawsuit against the client, stop collection activities on the second case that they had no business collecting on anyway, and pay my client money damages, as well as paying my attorney fees.  Of course this was a great result for the client and essentially the complete opposite of what the client anticipated would occur in her case (she expected to pay my office and then enter into settlement arrangements with Portfolio).

The most important thing to take away from this story is that you shouldn’t try handle your case on your own, no matter how small, without at least consulting with a Miami consumer protection attorney.  My office offer free consultations in all areas of consumer protection and harassment.  We also takes many cases on contingency so there is little risk, if any, to the clients. If you are being contacted by a collection agency, contact my office for a free consultation at (786) 529-2176 – The Law Offices of Shaya Markovic, P.A.

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Questions and Answers About the FDCPA

Q.  What is the FDCPA?

A.  The Fair Debt Collection Practices Act (“FDCPA”) is a federal statute that regulates debt collectors and prevents them from engaging in abusive, unfair, or deceptive practices in their efforts to collect a debt.

Q.  What type of debts are covered under the FDCPA?

A.  FDCPA defines the term “debt” as an alleged obligation of a consumer to pay money out of a transaction that are primarily for personal, family, or household purposes.  Common examples of such a debt are credit card debt, auto loan, medical bills, mortgage, and services.  The FDCPA does NOT apply to debts that are incurred to a business.

Q.  When is a debt collector allowed to contact me?

A.  A debt collector is prohibited from contacting a debtor at anytime that is unusual or inconvenient for the consumer.  Unless the debt collector knows otherwise, convenient times are between the times of 8:00 a.m. and 9:00 p.m.  A debt collector can never contact a consumer who they know to be represented by an attorney unless the attorney consents to the communication or is otherwise unresponsive.

Q.  Can a debt collector contact a consumer at work?

A.  A debt collector may contact a consumer at work unless the debt collector knows that the consumer is prohibited from receiving such calls.

Q.  Can a debt collector contact a third-party about my debt?

A.  Yes, but only to obtain your phone number, your address, and place of work.   However, a debt collector may not contact anyone if they know the consumer is represented by an attorney.

Q.  What must a debt collector tell me about my debt?

A.  Within five days of the initial communication with a consumer, a debt collector must send a validation letter containing the amount of the debt, a statement that unless the consumer disputes the debt the debt will be assumed to be valid, a statement if the consumer notifies the collector in writing within thirty days that the debt is disputed the debt collector shall obtain verification of the debt and mail it to the consumer, and a statement that upon request within thirty days of the initial communication that the debt collector will provide the consumer with the name and address of the original creditor.

Q.  What kind of actions are debt collectors prohibited from engaging in?

A.  A debt collector may not harass, oppress, or abuse any person in its attempts to collect a debt.  They may not use threats of violence or other criminal means to harass the consumer, use profane language or abusive language, publish a list of consumers who refuse to pay debts, attempt to collect a debt not authorized by law, threaten criminal prosecution, threaten to take any action not permitted by law.

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Largest TCPA Class Action Settlement Against Capital One

As I’ve previously blogged, the Telephone Consumer Protection Action (TCPA) protects consumers, and prevents solicitations through the use of an autodialed telephone calls to cell phones.    Recently Capital One settled a TCPA case whereby they agreed to a $75,000,000.00 dollar settlement.  Click below to read a copy of the settlement.  http://www2.bloomberglaw.com/public/desktop/document/In_Re_Capital_One_Telephone_Consumer_Protection_Act_Litigation_Do

If you receive unsolicited calls to your cell phone, contact The Law Office of Shaya Markovic, P.A. to discuss your case.  You may be entitled to damages of up to $1,500 for each call.  Call now at (786)529-2176.

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