Common violations of the Fair Debt Collection Practices Act (FDCPA)

Common violations of the Fair Debt Collection Practices Act (FDCPA) are the topic of this blog post. This post will focus on violations of the Federal Fair Debt Collections Practices Act found in Title 15 of the United States Code, section 1692, et seq. although many states, including California have their own version.

Debtors have certain rights and if they do not know what their rights are they cannot stand up for their rights. I believe in empowering people with legal information that gives them at least a basic knowledge of their rights so that they can deal with debt collectors with confidence and will not tolerate abusive behavior.  Debt collectors sometime take advantage of the fact that many people have no idea what their rights are.

The most important difference between the Federal version of the FDCPA and the California version is that the federal version ONLY applies to third-party debt collectors such as collection agencies and their employees and does NOT apply to an original creditor which basically means any company that is collecting their own debts. In contrast the California version of the FDCPA applies to anyone who regularly engages in debt collection in the ordinary course of business on behalf of himself or herself or others.

The prohibited acts that I have listed below are some of the most common violations of the FDCPA.

The Federal FDCPA states that third-party debt collectors CANNOT:

Contact a debtor before 8 a.m. or after 9 p.m., unless that debtor has asked them to;

Contact a debtor at work once the debtor informs that they do not want to be contacted at work;

Use threats of violence or harm against a debtor;

Publish a list of names of people who refuse to pay their debts although they legally provide this information to credit bureaus;

Use obscene or profane language;

Repeatedly use the phone to annoy someone;

Falsely claim that they are attorneys or government representatives;

Falsely claim that the debtor has committed a crime by not paying a debt;

Falsely represent that they operate or work for a credit reporting company;

Misrepresent the amount that the debtor owes;

Indicate that any documents they send to the debtor are legal forms if they aren’t, or indicate that any documents they send to the debtor aren’t legal forms if they are.

Claim that the debtor can be arrested if they don’t pay the debt;

Threaten to seize, garnish, attach, or sell property or wages of the debtor unless they are permitted by law to take the action and intend to do so;

Threaten legal action in cases where doing so would be illegal or if they don’t intend to take the legal action;

Provide false credit information about a debtor to anyone, including a credit reporting company;

Send anything to a debtor that looks like an official document from a court or government agency if it isn’t;

Use a false company name;

Try to collect any interest, fee, or other charge on top of the amount owed unless the contract that created the debt or state law where the debtor resides allows the charge;

Deposit a post-dated check early;

Take or threaten to take property of the debtor unless it can be done legally;

Contact a debtor by postcard, or

Contact a debtor after they have received a letter from the debtor stating that they do not wish to be contacted any further about the debt. The collector can still contact the debtor to confirm there will be no further contact or to advise the debtor of additional actions being taken against the debtor, such as a lawsuit.

I know from my own personal knowledge that some debt collection agencies do often violate the FDCPA as some years ago I briefly worked in the Southern California offices of a major nationwide debt collection agency and I personally witnessed with my own eyes and ears several of their employees cursing and swearing at debtor’s using very obscene and profane language, repeatedly calling debtor’s, threatening to seize personal property of the debtor such as “their precious household goods” as well as calling the debtor at work even though they had been requested not to.

In fact I recently “Googled” the name of that company and discovered that shortly after I resigned the company entered into a settlement and consent decree with the Federal Trade Commission over charges that they repeatedly violated the FDCPA. However I have also dealt with collection agencies that did not violate the FDCPA so I also realize that not all debt collectors are abusive. As with any other business there are always a few “bad apples.”

Attorneys or parties in California that would like to view a portion of a sample complaint for violations of both the California and Federal Fair Debt Collection Practices Act including brief instructions sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Motion in limine in California eviction after foreclosure

A motion in limine in a California eviction after foreclosure is the topic of this blog post. A motion in limine is authorized by Code of Civil Procedure section 128(a)(3)(8) as well as Evidence Code sections 353 and 400, et seq., and ample case law.

Used in the appropriate situations the filing of a motion in limine to exclude all evidence is a very powerful tool that can result in a huge win for a defendant in any eviction after foreclosure in California.

One very common ground for filing a motion in limine would be that the evidence offered by the plaintiff is inadmissible and should be excluded as the unlawful detainer complaint fails to disclose how the plaintiff complied with Civil Code sections 2932.5 and 2924 and on the further grounds that any documents offered by plaintiff are hearsay as the facts in the documents offered by plaintiff are disputed and therefore there are no issues of fact for which any relevant evidence might be admitted at the trial. The motion in limine can also request that the case be dismissed on the grounds that the plaintiff cannot show duly perfected title due to the fact that no notice of substitution of trustee was ever served or recorded as required by Civil Code section 2934a, and as a result the plaintiff lacks standing as they are not the real party in interest and cannot state any valid cause of action for eviction after foreclosure.

One California Court of Appeal has stated that the court’s inherent equity, supervisory, and administrative powers, as well as its inherent power to control litigation and conserve judicial resources allow the court to entertain a motion in limine to dismiss the entire action where the court believes that the plaintiff has failed to state a cause of action.

Anyone wishing to file a motion in limine should consult the local rules and the clerk in the department where the trial will be held as many local rules require a party to serve and file a motion in limine a certain number of days before the trial date.

Attorneys or parties in California that would like to view a portion of a sample 20 page motion in limine for an eviction after foreclosure that includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 300 sample legal documents for California and Federal litigation sold by Stan Burman visit: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

House Republicans try to block predatory lending protections for American soldiers

The attempt to block predatory lending protections for American soldiers by House Republicans is the topic of this blog post. I do not generally comment on a story like this but this one was so outrageous and got my blood boiling so much I had to post this and add my comments as well.

The articles states in part that, “The military has been struggling with the financial impact of predatory lending on service members for years. A 2014 report issued by the Consumer Financial Protection Bureau documents a host of abuses targeting troops. One family that took out a $2,600 loan ended up paying back $3,966.84 over the course of a year. Another borrower spent $1,428.28 to pay off a $485 loan in just six months. Thousands of service members receive short-term, high-interest loans each year.”

I have never served in the military but I have known many people who did including my oldest nephew that served in the Air National Guard and this action by the House Republicans is utterly shameful in my opinion. It is obvious that their only motivation for doing this is because of the pressure they are getting from the banking lobby. I urge every follower of this blog in the United States to contact their local House member and demand that they oppose this attempt to block the very much needed predatory lending protections.

I have included a link to the original article by Zach Carter as well as the entire text of the article.

http://www.huffingtonpost.com/2015/04/29/predatory-lending-military_n_7171748.html?ir=Politics&utm_campaign=042915&utm_medium=email&utm_source=Alert-politics&utm_content=FullStory&ncid=newsltushpmg00000003

WASHINGTON — House Republicans are pushing legislation to block predatory lending protections for American soldiers, under pressure from the banking lobby.

GOP lawmakers tucked the deregulation item into the National Defense Authorization Act — a major bill setting the military’s funding, along with a number of other controversial terms on Guantanamo Bay and other issues. If the banking item is enacted, it would impose a one-year delay on new Department of Defense rules meant to shield military families from abusive terms on payday loans and other forms of high-interest credit. The bill is being considered Wednesday before the House Armed Services Committee.

The military has been struggling with the financial impact of predatory lending on service members for years. A 2014 report issued by the Consumer Financial Protection Bureau documents a host of abuses targeting troops. One family that took out a $2,600 loan ended up paying back $3,966.84 over the course of a year. Another borrower spent $1,428.28 to pay off a $485 loan in just six months. Thousands of service members receive short-term, high-interest loans each year.

In 2006, Congress passed legislation imposing a 36 percent cap on interest rates for payday loans, auto title loans and tax refund anticipation loans to military families. Lenders responded by slightly tweaking the terms of their loans to avoid the limits. Since the law applied to payday loans with terms of 91 days or less, and amounts of $2,000 or less, credit companies were able to shirk the rules with 92-day loans, or loans of $2,001.

Big banks were even more creative, issuing “deposit advance products” — functionally almost identical to payday loans, but with a different name and with effective annual interest rates of around 300 percent. Congress responded to these tricks in 2012 by passing another law directing the Pentagon to fix these loopholes, and new rules were finalized in September of last year.

The rules are strongly supported by consumer groups, including the Consumer Federation of America, Public Citizen and the U.S. Public Interest Research Group. Wednesday’s GOP bill would delay those rules for a year, ostensibly to allow for a new study to examine the effects of the rules. The CFPB has already performed two such studies.

“It is unconscionable,” Public Citizen President Robert Weissman said in a written statement. “It is a sign of just how indebted certain members of Congress are to corporate interests that a critical, commonsense regulation that is needed to protect our national security can be sacrificed in service to the predatory lending industry.”

The American Bankers Association — the primary lobbying group for the banking industry — has lobbied against the Pentagon rules, specifically seeking to shield deposit advance products from their scope.

“In 2006 Congress acted in a bipartisan manner by passing the Military Lending Act, but nearly a decade later lenders continue to evade the Act’s original intent,” Holly Petraeus, CFPB’s assistant director of servicemember affairs, told HuffPost in an email. “I continue to hear from military families about the array of payday-like products that are specifically marketed to them, often featuring flag-waving patriotic language along with a sky-high interest rate… Every day these loopholes remain open is another day unscrupulous lenders are free to prey on members of our military.”

Big banks have had an ugly relationship with American soldiers lately. Wells Fargo, Bank of America, JPMorgan Chase and Citigroup pursued hundreds of illegal foreclosures against active-duty members of the military, ultimately reaching multiple settlements with the Department of Justice over such practices. As a result, they have embarked on extensive public relations campaigns to repair their image.

UPDATE: 1:10 p.m. — Rep. Tammy Duckworth (D-Ill.), an Iraq War veteran, will introduce an amendment to the NDAA bill that would strip out the Republican language delaying predatory lending protections.

Duckworth told HuffPost the GOP bill would “waste resources undertaking redundant studies and postpone the implementation of valuable protections,” adding, “Further delay will put more service members and their families in harm’s way.”

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 300 sample legal documents for California and Federal litigation sold by Stan Burman visit: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

Bank Business Model is Foreclosure NOT “Repayment”

Stan Burman:

Blog post from Neil Garfield discussing the reality that the business models of the big banks is foreclosure not repayment. He is correct in that quite a few homeowners are still not aware that the big banks profit more from a foreclosure than they do from actual repayment of a loan.

Originally posted on Livinglies's Weblog:

For further information or assistance please call 954-495-9867 or 520-405-1688.

==========================

see http://newswire.net/newsroom/pr/00088375-6-tricks-banks-use-to-drive-homeowners-into-foreclosure.html

For many years it has been apparent most observers of the mortgage crisis that the Banks have switched their traditional role of creditor seeking to get paid to something else — a “servicer” or “Trustee” seeking foreclosure. in fact, in multiple cases where the homeowner has had sufficient funds to pay off the “debt” upon proof of ownership and balance, the banks have actually argued in court that they should not be required to accept the money. They argue that is their election to seek foreclosure. Judges did not agree, but they still are pursuing a business model of exactly that — seeking foreclosure rather than payment.

An important quote from the above article strips the tip off of the iceberg —

When a bank assigns the risk of a loan to the investors of a securitized…

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Statute of LImitations Running on Bank Officers Who Perpetrated Mortage Crisis

Stan Burman:

The statute of limitations may be running out this year on any claims against the officers of the big banks that were involved in the essentially fraudulent mortgage securitization scheme that led to the financial crisis and economic problems that have been plaguing the economy for years now. Neil Garfield is right in that even former attorney general Eric Holder has said that private suits should be brought against these officers before the statute of limitations expires.

Originally posted on Livinglies's Weblog:

For more information please call 954-495-9867 or 520-405-1688

==============================

see http://www.courant.com/opinion/letters/hc-go-after-mortgage-fraud-perps-20150427-story.html

It appears that the statute of limitations might be running out this year on any claim against the officers of the banks that created the fraudulent securitization process. Eric Holder, outgoing Attorney general, made an unusual comment a few months back where he said that private suits should be brought against such officers. The obvious question is why didn’t he bring further action against these individuals and the only possible answer I can think of is that it was because of an agreement not to prosecute while these officers and their banks “cooperated” in resolving the mortgage crisis and the downturn of the US economy.

People keep asking me what the essential elements of the fraud were and how homeowners can use it. That question involves a degree of complexity that is not easily addressed here but I will…

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Banks Ignore the Bankruptcy Laws

Stan Burman:

The big banks are now ignoring the Bankruptcy laws by attempting to collect debts that have been lawfully discharged in a Bankruptcy by a specific order of a United States Bankruptcy Judge. There is big money at stake and the big banks want the money so bad they are now ignoring court orders. They seem to think that the laws do not apply to them. They need to be taught a lesson but I doubt the Justice Department will do much of anything except slap their wrist.

Originally posted on JONATHAN TURLEY:

US Trustee Program

Respectfully submitted by Lawrence E. Rafferty (rafflaw) Weekend Contributor

In the past, I have written about the Big Banks continued unlawful actions that only result in “slap on the wrist fines” that in many cases are passed on to the shareholders and/or used as a tax deduction. It seems that Wall Street and the Banksters have not learned a thing.  Or have they?

The latest wrinkle in Banksters taking advantage of American citizens is noted in a Crooks and Liars report which detailed an investigation into several Big Banks and their alleged refusal to honor the orders of Bankruptcy judges across the country. Of course, the “usual suspects” have been named in the latest investigations. 

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Just How Much of Big Bank Fines Are Actually Paid and Who Profits?

Stan Burman:

What percentage of their huge fines and penalties do the big banks actually pay and who profits. According to Jonathan Turley the big banks actually pay very little and the Justice Department actually profits as well as they receive up to 3 percent of the total settlements! That is outrageous and needs to be ended right now!

Originally posted on JONATHAN TURLEY:

US-DeptOfJustice-Seal_svg

Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Weekend Contributor

It should not surprise any of the regular visitors to this blog that I have written many articles detailing the abuses of many of the Big Banks and the resulting fines that they have paid on multiple occasions.  When a taxpayer reads about Billion dollar settlements being paid by Banks and financial companies as a result of a Justice Department investigation, they probably assume that the entire amount of the fine is being paid.

Those very same taxpayers may be surprised to learn that in many cases, the Banks are able to deduct from their taxes up to 75% of the fines and settlements made with the Justice Department.

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