How Can I Get Creditors to Stop Calling Me at Work?
Under fair debt collections laws, a creditor cannot call you at work if your company has a policy that prohibits you from getting such calls at work. A simple, oral notification to the creditor that, “I am not allowed to receive calls from creditors at work” is sufficient warning to force the creditor to stop calling.
The problem is that many creditors will not stop calling you at work even if you tell them to stop. The sure-fire way to get them to stop calling you at work is to give them written notice that you cannot receive calls at work because company policy prohibits it. Most creditors do not want to receive written notice, especially if they prefer to keep harassing you in an effort to get you to pay. If you have only given them oral notice to stop, then it’s your word against their word as to whether you ever told them to stop. However, if you have given them written notice, then there virtually is no dispute that you have told them to stop. Upon receipt of written notice, they almost always stop. However, as you probably well-know, many times these creditors won’t give you an address or fax number where to send such a notice (“I want to send you a cease-and-desist letter - - I need your mailing address.” The creditor usually just hangs up on you). If a creditor will not give you a mailing address or fax number, then you need to be shrewd. The next time they call you at work, simply pretend that you want to send in a payment. Tell them that you are not comfortable making a payment without proof in writing that the payment has been sent. Ask them for an address, fax number, or email address to which you can send in your payment. Without a doubt they’ll say, “We only take payment by credit card over the phone.” To which you will reply, “I have no problem paying by credit card, however, with so much identity theft, I need to send my credit card information to an actual address so that I know you aren’t calling me from a foreign country.” This will usually do the trick.
Once they give you the information, send them a written notice to stop calling you at work since your company prohibits such calls at work. Upon receipt of this written warning, they almost certainly will stop. You have no legal obligation to make a payment under these circumstances.
back to top
I Have Warned Creditors to Stop Calling, but They Will Not Listen. What Can I Do?
Herein lies the fine distinction in fair debt collection laws. If the calls you have received are coming to your work, then the creditor must stop upon immediate “oral” notice that you are not allowed to get such calls at work. You do not have to put such a warning in writing. However, the rules for calls to home and your cell phone are different. Under fair debt collection laws, if a creditor calls you at home or on your cell phone, they do not have to stop calling you unless you give them “written” notice to stop calling you. However, there is a catch to this rule. Even if you have not given your creditor written notice to stop calling you at home, that does not give your creditor license to call you as frequently as they want to your home or cell. Absent a written warning to stop calling you at home or on your cell, a creditor is still duty bound to only make a reasonable amount of calls to a person’s home or cell. A creditor cannot ring your home or cell phone multiple times in a day, hoping to break you down. Typically, a creditor is allowed to make three calls a week to your home or cell phone if you have not given them written warning to stop. Multiple calls per day to a home or cell phone are never legal regardless of whether you have given them a written warning to stop.
back to top
What If a Creditor Will Not Give You an Address to Send Them a Written Warning to Stop Calling?
Many creditors will not give you their mailing address if they know that you are trying to send them a cease-and-desist letter. If a creditor will not give you a mailing address or fax number, then you need to be shrewd. The next time they call you, simply pretend that you want to send in a payment. Tell them that you are not comfortable making a payment without proof in writing that the payment has been sent. Ask them for an address, fax number, or email address to which you can send in your payment. Without a doubt they’ll say, “We only take payment by credit card over the phone.” To which you will reply, “I have no problem paying by credit card, however, with so much identity theft, I need to send my credit card information to an actual address so that I know you aren’t calling me from a foreign country.” This will usually do the trick.
Once they give you the information, send them a written notice to stop calling you. Upon receipt of this written warning, they almost certainly will stop. You have no legal obligation to make a payment under these circumstances.
back to top
I Have Sent a Cease and Desist Letter to My Creditor But They Continue to Call: What Can I Do?
The first thing that you need to ensure is that you sent the cease-and-desist letter to the right place. If you are being pursued by a national bank, it is easy to get their mailing address. The tricky part is when a shady debt collector is the party trying to collect the debt. Many times, these outfits are nothing more than a bare room, a few phones, and guys calling incessantly. How do you get an address for these guys? As noted above, trick them into thinking that you are going to send them payment. Tell them that you need an address where to send your payment. Without a doubt they’ll say, “We only take payment by credit card over the phone.” To which you will reply, “I have no problem paying by credit card, however, with so much identity theft, I need to send my credit card information to an actual address so that I know you aren’t calling me from a foreign country.” This will usually do the trick.
But what if you are sure that you have sent written notice, yet they keep calling? You only option at this point is to sue them. If your case falls into this category, then our firm will represent you and will not charge you attorney’s fees on such a matter unless you settle the case or win at trial. However, from a lawyer’s standpoint, we want to know if they have called you incessantly or if they have merely called you occasionally after receiving written notice. Occasional calls after sending a cease-and-desist letter, although technically illegal, do not make for good cases. Rather, it is only the situation where a creditor calls you multiple times a day for a period of time after receiving such calls that give you realistic grounds to sue.
back to top
I Keep Receiving Calls from an Automated Dialing Machine, Asking Me to Pay My Bills: Is this Legal?
Yes and no. Yes, it is legal for a creditor to use an automated dialing machine to make calls to you, asking you to pay your debt. No, it is not legal for a creditor to use a computer to do what it otherwise could not do in person. For example, if, after receiving calls from an automated dialing machine, you send a written notice to the creditor asking them to stop the calls, they cannot keep making calls. Once notice to stop is received, a creditor cannot keep making calls on an automated dialing machine. A written warning to stop applies to human callers as well as automated dialing machines.
back to top
What Can I Do to Get a Creditor to Stop Calling Me?
The trick to stopping creditors from calling you is to give them a “written notice” to stop calling. The written notice must say something akin to the following:
“Dear ABC Credit Co.
I have received calls from you to my home, work, and cell about a debt hat I allegedly owe to you. The account number that has been
referenced is account no. 123456789, with a debt that was allegedly owed to Sears. Pursuant to the Federal Fair Debt Collections
Practices Act and the California Rosenthal Act, I am hereby requesting that you immediately stop calling me and writing letters to
me about this debt. If you refuse to do so, then I will file a lawsuit against you for creditor harassment. “
Sincerely, Your Name.
Make sure that this letter gets sent to the correct place. Send it via regular mail and certified mail. On top of that, fax and email the letter, as well. The point is that you want to be absolutely sure that the letter has been delivered to the creditor. Also, you want to make sure that the creditor cannot later argue that it never received a copy of the letter.
This letter is the kryptonite to creditors. By law, it stops them in their tracks. However, the occasional creditor will, nonetheless, continue to call you after receiving such a letter. If the creditor just ignores this letter and continues to call you regularly about the debt, then you have fertile grounds to sue them. Plain and simple.
back to top
Does a Creditor Have to Stop Calling Me If I Don’t Give Them a Letter Asking Them to Stop?
Yes and no. If you are being called at work, then a creditor must immediately stop calling you if you “orally” tell them that you are not allowed to receive such calls at work. However, if you are being called at home or on you cell, then the rules are different. An oral notice to a creditor to stop calling you at home or on your cell is insufficient. You must give them written notice to stop. However, even if you have not given a written notice to stop calling you at home, that does not give a creditor permission to call you at all hours of the day at home. Rather, the law allows a creditor to call you about 2 times a week at home if you have not given them a written notice to stop. If they call in excess of 2 times a week, then that could be a violation of law. If a creditor calls every day, then that clearly would be a violation of the law.
back to top
I Have Tried Everything But My Creditors Simply Will Not Stop Calling Me: What Can I Do?
If a creditor continues to call you even after you have provided written notice that they stop, the first thing we recommend is that you make sure that the creditor received the written warning to stop. Make sure that this letter was sent to the correct place. Send it via regular mail and certified mail. On top of that, fax and email the letter, as well. The point is that you want to be absolutely sure that the letter has been delivered to the creditor. Also, you want to make sure that the creditor cannot later argue that it never received a copy of the letter.
If you are sure that the creditor has received this written notice, then you have clear grounds to sue. It does not matter how much money you owe a creditor; They do not have a the right to keep harassing you about the debt after you have given them written warning to stop. There are two obligations in play here: Your obligation to pay the debt you incurred, and the creditor’s obligation to avoid harassing you about the debt. If the creditor truly feels that it is legally owed this money, then it has a legal way to get the money: They can sue. What that cannot do is harass you to death, in the hope of breaking your will, so that you pay.
back to top
Can A Creditor Call My Boss or Co-Workers and Tell Them About My Debt?
No. No. No. No. (Just wanted to make sure that you got that point). A creditor cannot call your work more than once, and that is solely for the purpose of determining if you work at that location. A creditor is NEVER allowed to disclose the purpose for their call. The call would be limited to saying, “We are trying to determine if Joe Smith works for you.” That is it. If a creditor calls your work regularly, looking for you, they have broken the law. If a creditor calls your human resources department and asks questions about garnishing your wages, this is also illegal. If a creditor calls your boss and tells them about the debt, then they have unquestionably broken the law. The point is that your place-of-employment is off-limits.
As noted above, if you are the person who speaks to your creditor when they call you at work, a simple oral notice to them that you are not allowed to receive such calls at work will stop them in their tracks. Any calls to you, thereafter, are illegal.
Don’t be a victim in this situation. If you use the law to your advantage, you will be fine. Don’t be intimidated by a creditor who ignores the law. You can sue such a creditor and prevail.
back to top
A Default Was Filed Against Me, but I Was Never Served: What Can I Do?
If you never showed up in court to defend the lawsuit against you, then a default judgment was entered against you. If you don’t move to set the default judgment aside, then it will become permanent. This is true even if the lawsuit has no merit.
So, how do you get a default judgment set aside? If you were never properly served with the lawsuit, then you can move to have the default judgment set aside. However, it can only be overturned if the default judgment was entered less than 2 before. If it is older than 2-years-old, then you cannot overturn the default judgment UNLESS you can show that the company suing you lied to the court, when they claimed that they served the lawsuit upon you. For example, let’s presume that a default judgment was entered against you 3 years ago. However, a review of the Proof of Service filed in the case, states that you were personally served at an address in which you never lived, nor had any connection to in your life. This would be a fraudulent statement and would give you additional time to challenge the default judgment.
On the other hand, if you were properly served with the lawsuit, but just ignored the lawsuit, you can still set the default judgment aside. However, your window to set it aside under this scenario is much shorter. You can only set aside a properly served default judgment under this scenario if you move to set it aside within 6 months after the default judgment was entered. You cannot set the properly served default judgment aside if you wait more than 6 months after it was served.
Before setting a default judgment aside, you must ask yourself whether you will benefit from setting the default judgment aside. If you were sued by a creditor who purchased the debt from the original creditor (referred to as a “Debt Buyer”) then you must make every effort to set the default judgment aside. Many times, Debt Buyers purchase the debt from the original debtor for pennies on the dollar. It is not unusual for a Debt Buyer to lack evidence that you owe the debt. Many times, these Debt Buyers file lawsuits, hoping that you do not respond so that they can obtain a default judgment against you. If you call their bluff and answer the lawsuit, many times their case either shrivels up and goes away, or they are willing to accept a settlement for substantially less than is owed. Again, if a default has already been entered by a Debt Buyer, then you must act in a timely fashion to set is aside or else you lose. A judge will not listen to the merits of your case if you have waited too long to set the default judgment aside.
So, what does it cost to set a default judgment aside? Our firm charges $350 in attorney’s fees to file a motion to set a default judgment aside, which includes the filing of the answer. There is a separate court filing fee to file the paperwork with the court. If you are financially unable to pay the court’s filing fee, the court will usually waive the requirement that you pay the filing fee. Once the default has been set aside, you can reasonable expect to pay between $700 - $1,000 in attorney’s fees defending the case up until the point of trial. As a practical matter, these cases rarely end up in trial. During the period before trial, all parties must disclose their evidence to each other. It becomes readily apparent before trial whether the Debt Buyer has enough evidence to prevail at trial. If not, they typically dismiss or hope to cut a deal by substantially reducing the offer to settle.
On the other hand, if the default judgment entered against you was brought by the original creditor, then you have other concerns. If you do not dispute that you owe the debt, then there is still a benefit to setting the default judgment aside. If you set the default judgment aside, the original creditor must wait 9 - 12 months to bring this matter to trial. They will incur time and expense doing so, not to mention that they must now prove their case against you. Original creditors would prefer to settle a debt, then incur additional fees and costs taking the case to trial. This will (likely) cause them to attempt to negotiate a settlement with you before trial. Again, our fees to handle such a matter for you is the same as referenced in the paragraph above. Under these cases, we do everything within our power to settle the case before trial, since the original creditor (unlike a Debt Buyer) almost always has all of the evidence to prove that you owe the money. We don’t charge you a percentage of the debt reduced. Rather, we charge you a reasonable hourly sum, an amount that usually does not exceed $700 - $1,000.
As is apparent, the most important issue is time: You cannot sit on your hands if a default has been entered against you. If you wait too long, you will lose all of your legal rights. This is true EVEN IF the lawsuit has no merit. The court will presume that the lawsuit is valid if you let too much time pass.
|
