California and federal law protect you against debt collection abuse. Creditors, professional debt collectors, and collection attorneys who violate the law are subject to paying actual damages, statutory penalties of $1000, and your attorneys fees and costs. The following is a list of common violations under California’s Rosenthal Fair Debt Collection Practices Act, and the federal Fair Debt Collection Practices Act.
Debt Collection Harassment
The following conduct is illegal:
- Calling too often.
- Contacting you after you notified the debt collector in writing to stop.
- Calling you at work after you told the debt collector to stop.
- Calling your employer.
- Calling family or friends.
- Disclosing your debt to others.
- Threatening you with jail or arrest if you don’t pay (unpaid debt is never a crime);
- Threatening to garnish your wages or seize assets before they have even sued you.
- Using profanity.
- Suing you on an old debt (generally, more than four years old).
Contacts with work, family and friends
Debt collectors are outright prohibited from most contacts with other people, such as friends, family or references. They can call other people only to obtain your current “location information,” which is defined as your home address, work address, and home phone number. If they already know that information, they cannot call third parties at all! They can never disclose that you owe a debt.
Under California law, a debt collector or creditor may make only one phone call to your employer, and only for the purpose of verifying employment, not to leave messages or discuss anything else.
Calling too often or at unreasonable times and places
Debt collectors cannot call with unreasonable frequency. One case held that calling more than once a day is illegal. See Joseph v. J.J. MacIntyre Companies, LLC, 238 F.Supp.2d 1158 (N.D. Cal., 2002).
A debt collection agency cannot call you before 8 a.m. or after 9 p.m. (your time).
Debt collectors cannot call you at work, after you tell them to stop.
Debt collectors cannot call you on your cell phone, using an automated dialer.
Threats to garnish wages or seize your assets; suing on old debts
Most threats to garnish your wages are false, because debt collectors cannot garnish your wages until they have obtained a judgment against you in court. Those threats to garnish your wages are usually illegal!
It is also against the law to sue you on an old debt. Under California law, most credit card and other contractual debts are too old if more than four years has elapsed since your last payment.
There is a lot of talk on the internet about the process of requiring the debt collector to validate the debt, by sending a “debt validation” letter to them. This usually leads nowhere, unfortunately. In our opinion, a better way to handle an unwanted debt collector is to send them a “cease contact” letter.
How to get rid of a debt collector: the Cease Contact letter
By law, if you send them a letter requesting that they stop all contact, the debt collector must obey. Telling them on the phone does not count: you need to send a letter. Don’t use form letters you find on the internet, because they are poorly drafted. Just send a simple letter, by certified mail return receipt requested, which states “Please stop contacting me through any method, whether email, phone calls, or in writing.” The debt collector must then legally stop all contacts. If they don’t stop, give us a call for a free consultation. And don’t forget that even if they stop, you have the right to sue for past misconduct.
Debt Collection Lawsuits on Credit Cards, Auto Loans, and Student Loans
I’ve been sued on a credit card debt. Is there any way out?
Yes. The fact is that most credit card lawsuits can be defeated by a knowledgable consumer attorney. Debt buyers who bring a credit card lawsuit often do not have the original contract, and have no admissible records of their ownership of the account. The debt collector’s sloppy record-keeping and reluctance to appear in court with a witness, means they will be unable to prove their case in court if challenged by a competent lawyer.
I’ve been sued on an auto loan deficiency balance. What are my chances?
You do have a chance, but consult a lawyer. Many auto lenders fail to comply with the Rees-Levering Automobile Sales Finance Act, by issuing consumers defective post-repossession notices. The result is that the consumer does not owe any debt after the vehicle is auctioned. Please contact us for a free analysis of your notice, and to see if you have other typical auto loan defenses.
I’ve been sued on a student loan debt. Is there a defense?
You need a consumer attorney to analyze if the statute of limitations applies to bar the lawsuit. The statute of limitations issue is a complex one, as many of the student loan contracts choose the laws of states other than California. The lenders often do not fully analyze if their own lawsuit is stale, because they hope you will fail to respond and default.
The debt they sued on is quite old. Is this a defense?
Yes. The “statute of limitations” on a written contract is four years in California. If more than four years have passed since your last payment on the debt, you may prevail in the lawsuit.
How long do I have to respond to the lawsuit?
You have only 30 days from receipt of the summons and complaint. The deadline is not the first court hearing in the matter. It is 30 days from receipt of the summons. You must file a formal answer within the thirty days, not send a letter, or call the court. Don’t let the 30 days pass without filing! You will be out of court, and the debt collector will get a default judgment against you.
Should I represent myself?
This is a bad idea. You will almost certainly lose without an attorney, even if you should win on the legal issues. This is because you won’t understand the complex procedures applicable in court, and judges do not waive the rules for self-represented persons. Give us a call for a free consultation. In many cases, we can defend you for far less than what you would pay on the debt.
They sued me years ago and never told me! What do I do?
Unfortunately, many process servers don’t follow the rules, and deliver lawsuits to old addresses, or even lie about having delivered the lawsuit. There is no time limit for setting aside a default judgment, when the consumer was not properly notified of the lawsuit. Give us a call for a free consultation about whether the service in your case was proper. We have often been successful in setting aside old judgments taken by “sewer service.”