What Happens if I Received a Statement of Claim?

A Statement of Claim is a form that is used when someone believes you owe them money.  This is the form that begins a case in Small Claims court.  It is a simple form that is filled out by the Plaintiff, and then given to the clerk who will issue a Summons. This is then given to the defendant, usually by a process-server.  Of course there are a lot of specific rules that must be followed and violating anyone of them can lead to a dismissal of the entire case.

Small claims cases are cases that are cases for less than $5,000 exclusive of interest, costs, and attorneys’ fees.  Most commonly a statement of claim is used by a debt collection attorney.  The reason this is because small claims rules are very lenient and collection attorneys think they won’t have to prove their case.  however, a competent defense attorney will invoke the rules of procedure and force the Plaintiffs to prove every step of their case.

Once a Defendant is given the lawsuit by the process-server the Summons will give you a date, time and place that you are to appear for a pretrial conference.  Often at the pretrial conference is just a mediation and you enter indicate if you are liable or not.  This is the most dangerous part of a case for a Defendant who does not understand the rules and defenses that are available to him.  I strongly suggest you retain a competent debt defense attorney before attending this hearing.   Every time I attend this hearing almost all the Defendants without an attorney end up entering into a payment plan if the plaintiff is a debt collector, regardless of the proof they have.  The reason this happens is because they assume that if they borrowed the money they will have to pay it back.  However, this may not be the case.  Many defenses are available such as statute of limitations, bankruptcy, or if the plaintiff just can’t prove their case.

Never ignore a statement of claim and immediately contact an attorney who can advise you of the strengths and weaknesses of your case and how to best proceed.  If you have received a Statement of Claim and need would like a free consultation, you can contact my office at (786) 529-2176.

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Florida Court Rejects Long Standing, Accepted Deifintion of Express Consent Under TCPA

The TCPA was encated in 1991 to stop telemarketing to random phone lines where there was one previous relationship   The law was enacted in response to the use of telemarketers blasting automated calls to all phone lines.  There is an exception for cases where the landowner gave express consent to the business to call the phone line.

To read about the change: http://www.cfslbulletin.com/2013/05/10/florida-judge-rejects-long-standing-accepted-definition-of-express-consent-under-telephone-consumer-protection-act/

 

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JPMorgan Bank Floods California With Credit Card Lawsuits and California Files a Lawsuit

The state of California has filed a lawsuit against JPMorgan Chase alleging that they filed tens of thousands of lawsuits to collect credit card debt in violation of debt collection laws.  Here is a link to read more about it. http://dealbook.nytimes.com/2013/05/09/california-sues-jpmorgan-chase-over-credit-card-cases/

The question arises why they would file thousand of lawsuits without all their documents and violating debt collection laws?  The answer is simple: most consumers don’t know their rights and 99% of defendants don’t bother talking with an attorney when they get sued.  Since few people challenge the lawsuits, it’s worth while to lose and possibly get sued on a few and still win the rest of the lawsuits.

If you receive a Miami Credit Card Lawsuit or a Broward Credit Card Lawsuit, call for a free consultation at (786) 529-2176.  My office is open late and on the weekends to better serve you.  Don’t let the big banks trample your rights!

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JPMorgan Chase Bank Sued for FDCPA Violations

JPMorgan Chase was sued for violating the Fair Debt Collection Practices Act.  These violations include Robo-Signing, failing to notice consumers of lawsuits, and for filing irregularities.  Sadly, even big banks and large companies violate the FDCPA.

To read more about the case click here http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-suit-against-jpmorgan-chase

 

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Debt Settlement Firm Charged in Criminal Referral

scam picNot all Debt Settlement Companies are ethical, and some don’t even have an attorney that can go to court for you!  Mission Settlement Agency, a debt settlement company, was charged today with defrauding more than 1,200 individuals who were trying to payoff their credit card debt and avoid or resolve credit card lawsuits.

According to prosecutors, Mission employees would scam victims by lying and misrepresenting the companies fees for services.  The employees also lied about the reduction deals they allegedly obtained for clients.

It’s important that you hire someone you can trust and can represent you in court even if you have not yet been sued.  The Law Office of Shaya Markovic, P.A. is a law firm in Miami Debt Defense law firm.  I encourage all clients to come into my office for a consultation to meet with an experienced attorney to help explain your case and the possible outcomes.  As always, if you have been sued for a debt in Broward, Miami, or in the Palm Beaches, contact my office for a free consultation at (786) 529-2176. Free consultations, reasonable payment plans, experienced attorney.

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Fake Debt Collectors

As has become clear, our economy has been in a slump for a few years now.  As a result, many people who otherwise paid their credit cards and bills on time are now behind.  Many times there are numerous debt collectors contacting debtors claiming that they now own your debt and are seeking settlement on the debt.  Sadly, there are also those out there that may attempt to coscamntact you to collect a debt that they don’t own.  These people are out there trying to capitalize on other people’s misfortune.  If you are one of these people who are fraudulently trying to collect a debt that you don’t own here is a link for a  good Criminal Defense Attorney, you’ll probably need it.

The Federal Trade Commission,  the nation’s consumer protection agency, has issued a warning to consumers that they should be on the lookout for these scammers.  It could be hard to identify a fake debt collector and sometimes their intentions aren’t clear.  Some fake debt collectors are looking to get your personal information to steal your identify while others want you to make a payment to them so they can make a quick few dollars.

To protect yourself, it is always a good practice not to give out any personal information over the phone to anyone that has initiated contact with you.  Be on the lookout if someone is trying to collect a debt that you do not recognize.  Request of the caller your personal information and ask them to send you their request by mail.  If a caller makes outrageous claims, allegations, and threats towards you, such as having to go to jail, that should raise a red flag.

If you suspect that you are being contacted by a fake debt collector, get the business name, the caller’s name, and address of the business.  You can use that information to investigate after the call ends.  You can also contact the Federal Trade Commission to see if they have any information.

As always, if you do get a call from a debt collector, contact an experienced Miami Debt Defense Attorney that can advice you on your best course of action.  The Law Offices of Shaya Markovic defends credit card lawsuits and other debt cases in Miami, Broward and Palm Beach.  Even if you have not been sued, we can fight your debt and often sue debt collectors for contacting you in violation of the law. Call The Law Offices of Shaya Markovic, P.A. at (786) 529-2176 for a free consultation.

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Wage Garnishments In Florida

imagesI often consult with clients who call frantic about their paychecks being garnished. Many times they believe that their entire paycheck will be taken until their debt is paid off.  This hopefully will clarify some aspects of wage garnishments in Florida.

What is Wage Garnishment in Florida and When Does It Apply?
A Wage Garnishment is when a creditor who has a judgment against you (Judgement Creditor) gets an Order from a court that is sent to your employer directing him to withhold money from your paycheck and to pay the amount withheld directly to the creditor.
A creditor can’t just send a letter your employer to make him withhold your pay.  First, he must get a judgment against you and an Order from the court directing your pay to be withheld.  There are a few exceptions to this rule (mentioned below) but you should always consult with an attorney.

How Much Can be Garnished
?
A creditor can garnish up to 25% of your net wages or the amount your net wages exceed 30 times the federal minimum wage.  If your wages are less than 30 times the federal then the judgment creditor can not garnish any of your wages.

Special Laws for Certain Debts
:
Some types of debts have special laws and a creditor does not need to obtain a judgment prior to garnishing wages.  These laws apply to child support, taxes, and student loans.

Claims of Exemption:
A Claim of Exemption is a defense to use against a judgment creditor who is attempting to get garnish wages or seek assets through other legal means.  There are numerous claims of exemption to protect personal property.  However, the main exemption to protect garnishments under Florida law is the Head of Family Exemption.  If a person makes $500 or less per week in net wages and that person provides more than one half of the support for a child or another person in the house, that person’s wages are exempt from being garnished.

As a Miami Debt Defense attorney, I consult with many potential clients who are having their wages garnished.  If you are having your wages garnished and would like a free consultation, call my office at (786) 529-2176.  Regardless of whether it is credit card debt, student loan debt or any other judgment you have, my office can provide you with the defenses you need to continue paying your bills.

 

 

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What are the Types of Causes of Action that Debt Collectors Use to Sue for Debt?

images (1)What is a “cause of action?” A cause of action is a fact or a combination of multiple facts that would give a plaintiff the right to sue and is the basis of a lawsuit.  In a credit card lawsuit or debt lawsuit case, the most common types of causes of action are: Account Stated, Unjust Enrichment, and Breach of Contract.  There are others, but a vast majority of debt lawsuits consist of a combination of these.

Account Stated is a balance that is agreed upon by both parties  either expressly or through an implication.  When used in a credit card lawsuit it usually refers to the credit card company sending you monthly invoices.  If you don’t object to the statement amount, the debt collectors claim that you accepted the balance implicitly.

Breach of Contract is a promise between two or more parties creating an obligation between those parties.  When used in a credit card lawsuit, the allegation is that you entered into an agreement with the credit card company to pay back the amount you use on the credit card.  Although a written contract is not legally required, for these cases there usually needs to be one.

Unjust Enrichment is the retention of a benefit conferred by another, without offering compensation, where compensation is reasonably expected. When used in a debt lawsuit, the claim is that you received money from a credit card company and never paid it back, when you were expected to pay it back.  This is often included in a credit card lawsuit because no contract is required to prove the claim and all that needs to be shown is that you received the money and never made repayment.

Why a debt collector would use certain combinations of these depends on the facts of each case. If the debt collector has a contract, then they would often bring a claim under that theory.  However, often times they would not be able to locate a contract so they would have to sue using another cause of action that doesn’t require a contract.

As a Miami Debt Defense attorney and Debt Harassment attorney, I am able to fight debt collector lawsuits.   My office aggressively fights these cases and can sometimes sue for harassment  putting you on the offensive in these lawsuits!  If you, or someone you know, has been sued or is receiving phone calls from debt collectors contact my office for a free consultation.  (786)529-2176.

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Calling a Debtor a Liar When Collecting a Debt Is Sufficient to State an FDCPA Claim

debt harrassA Michigan court recently held that a debt collector who alleged that a debtor was “not being honest” and called the debtor a “liar” with respect to her work history has stated a Fair Debt Collection Practices Act (FDCPA) claim.  The debt collector was attempting to collect a $1,600 dollar debt for medical bills.  The debt collector pressured the debtor to borrow money from family and friends and or else the claim would be turned over to a law office.

The claim was brought under FDCPA which was enacted to “eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who retain from using abusive debt collection practices are not competitively disadvantaged and to promote consistent State action to protect consumers against debt collection abuses” 15 U.S.C. § 1692(e). In this case, the debtor brought a lawsuit under  15 U.S.C. 1692d and 1692e. Section “d” prohibits “conduct the natural consequences is to harass, oppress  or abuse any person in connection with the collection of a debt.” Pursuant to section “e”, “a debt collector may not use any false, deceptive, or misleading representation or mean in connection with the collection of any debt.”

The Defendants attempted to dismiss he claim alleging that the conduct to not violate any provision of the FDCPA.  The court denied the motion.  To read the entire opinion click on http://scholar.google.com/scholar_case?case=8544971549357555622&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

As a South Florida Debt Defense and Debt Harassment attorney, I fight and sue debt collectors for any violation of the law.  If you are being contacted by a debt collector or if you receive calls on your cell phone from a debt collector you may be entitled up to $1,500 per violation.  Call my office for a free consultation at (786) 529-2176.

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What Is The Fair Debt Collection Practices Act?

The Fair Debt Collection Practices Act (“FDCPA”) is a federal law that regulates how a collection agechicago unfair debt collection practices act lawyerncy operates.  A collection agency is anyone who regulatory collects or attempts to collect debts owed or due or asserted to be owed or due to another.  The FDCPA was created to protect consumers from the harassing, abusive, deceptive  and unfair practices employed by debt collectors.

What kind of debt is covered?
All personal, family and household debt .  This includes credit card debt, medical bills, personal loans, and any other debt.  The FDCPA does not apply to business debt.

Violations of the FDCPA
Debt Collectors can’t do any of the following:
Can’t call consumer between 8:00 a.m. and 9:00 a.m., can’t call third parties about the debt, except in a few very limited situations; can’t threaten violence, use obscene language, harm physically or the reputation of the consumer; can;t make phone calls without identifying him/herself; can’t annoy, harass  abuse a person my repeatedly calling or allowing the phone to continuously ring; can’t use any false or misleading statements to collect a deb; can’t threaten criminal violations for a debt.

Consumers remedies for violations:
If a debt collector violates any FDCPA provision, a consumer may bring a lawsuit and recover any actual damages, as well as $1,000.00, plus costs and attorney’s fees.

The Law Offices of Shaya Markovic, P.A. is a debt defense attorney located in Hollywood, Florida.  If you have been contacted by a debt collector call my office at (786) 529-2176 for a free consultation.

 

 

 

 

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