Title: August 29, 2008
Q: A few years ago, I filed a Chapter 7 bankruptcy. I owed about $700 to Washington Mutual back then, but the debt was discharged. I recently applied for an account online with Washington Mutual because that’s the closest bank to my house. The bank opened a checking account about 4 months ago and issued a debit card. When I attempted to add my son as a signatory on the account, my debit card was cancelled by the bank the following day. I could not view any account details online, while my payroll check is in the account. I found out about this while trying to use my debit card at the grocery store and to buy gas for my car. Can the bank take my money away like this?
A: If your bankruptcy was discharged, no the bank cannot. You may have a lawsuit against the bank for violating the U.S. Bankruptcy Court discharge injunction. Once a debt is discharged in a Bankruptcy Court, no one can ever try to collect on it. Many credit cards will sell debt to collection agencies for a penny on the dollar and collection agencies will attempt to collect on these credit card debts, several years later. But your case is completely different. I would contact Washington Mutual and show them your discharge Notice. They might need you to produce the specific Bankruptcy schedule that lists the debt to Washington Mutual, so as to ensure that particular debt was included in your bankruptcy discharge. I suspect that they will return your money rather quickly after finding out that particular debt was already discharged.
Q: I keep receiving e-mails about my winning some contest I never entered into in the UK, or in Nigeria, or some bank clerk looking for someone in the USA to transfer some huge amount of foreign capital into the United States, a percentage of which would be mine. Why do I keep receiving these e-mails and what are they all about?
A. These e-mails are all fraudulent, and I would delete them without even reading them if I was you. The people perpetrating the fraud are looking for a “fish”. If you respond, they might entrap you to give your bank information to them, so that they can empty your bank account. Typically, they send you a bogus check or promise to transfer some large amount of money into your bank account by a certain date, and then ask that you write a check for their “percentage” back to them. If you have the “percentage” amount in your bank account already, they will cash your check while theirs will bounce, and you will be left holding the bag. Please these are all con games. Do not fall for it!
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail your questions or comments to http://www.generalaw.com She will answer your questions to the best of her abilities.
Showing posts with label Collection Agency. Show all posts
Showing posts with label Collection Agency. Show all posts
Tuesday, March 24, 2009
Legal Eaze #89 Paying For Free Gift/Debt Collection Statute of Limitations/Joint Revocable Living Trust
Title: April 2, 2008
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Legal Eaze #80 Community Property and Divorce Jurisdiction/Insufficient Funds
Title: November 5, 2007
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Monday, March 16, 2009
Legal Eaze #41 car brakes/ credit card collection agency/ funeral
Title: February 22, 2006
Q. I helped my friend over the weekend to work on his car brakes. He gave me a six-pack of beer for helping him. My friend got in an accident and claimed his brakes failed. Am I responsible?
A. Unless you are a certified car mechanic and had a contract with your friend to fix the brakes, for which you got paid a six-pack of beer, you are not responsible for the accident.
Q. I have been sued by a collection agency trying to collect a credit card debt that is at least 10 years old, if not older. I did use the credit card but I lost my job and had no money to make the monthly payments. The debt grew and grew until it became totally unmanageable for me. Now, this collection agency wants triple what the debt was originally. What do I do?
A You need to answer the complaint by generally denying the complaint allegations. Then as an affirmative defense, you need to mention that the cause of action for breach of contract is barred by the statute of limitations as well as any other causes of action. This means that the debt is too old to be collected on. The statute of limitations on credit card debt is four years after your last payment or the last communication between the credit card and you.
Q. My mother died about one month ago. Of course, I contacted a funeral home for them to handle the cremation of my mother’s body. In order for my mother’s body to be cremated, they told me I had to purchase a casket. I was grieving and not in my right mind and I paid them almost $4,500 for a casket, but now that I think of it, why does a body need a casket to be cremated in? That makes no sense at all. I believe I was defrauded. What do you think?
A I agree. The Funeral Rule requires funeral providers to give you an accurate, itemized price list about funeral goods and services. To require the purchase of a casket for cremation is in direct violation of this rule, and this funeral provider will be subjected to a penalty up to $10,000 for this egregious act. You need to report this to the authorities and hire an attorney to file a lawsuit against the funeral provider. It is possible that you can write a letter and mention that you will file a lawsuit against the company unless they give you your money back for the violation if you want to avoid the time and aggravation associated with a lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. I helped my friend over the weekend to work on his car brakes. He gave me a six-pack of beer for helping him. My friend got in an accident and claimed his brakes failed. Am I responsible?
A. Unless you are a certified car mechanic and had a contract with your friend to fix the brakes, for which you got paid a six-pack of beer, you are not responsible for the accident.
Q. I have been sued by a collection agency trying to collect a credit card debt that is at least 10 years old, if not older. I did use the credit card but I lost my job and had no money to make the monthly payments. The debt grew and grew until it became totally unmanageable for me. Now, this collection agency wants triple what the debt was originally. What do I do?
A You need to answer the complaint by generally denying the complaint allegations. Then as an affirmative defense, you need to mention that the cause of action for breach of contract is barred by the statute of limitations as well as any other causes of action. This means that the debt is too old to be collected on. The statute of limitations on credit card debt is four years after your last payment or the last communication between the credit card and you.
Q. My mother died about one month ago. Of course, I contacted a funeral home for them to handle the cremation of my mother’s body. In order for my mother’s body to be cremated, they told me I had to purchase a casket. I was grieving and not in my right mind and I paid them almost $4,500 for a casket, but now that I think of it, why does a body need a casket to be cremated in? That makes no sense at all. I believe I was defrauded. What do you think?
A I agree. The Funeral Rule requires funeral providers to give you an accurate, itemized price list about funeral goods and services. To require the purchase of a casket for cremation is in direct violation of this rule, and this funeral provider will be subjected to a penalty up to $10,000 for this egregious act. You need to report this to the authorities and hire an attorney to file a lawsuit against the funeral provider. It is possible that you can write a letter and mention that you will file a lawsuit against the company unless they give you your money back for the violation if you want to avoid the time and aggravation associated with a lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Monday, January 5, 2009
Legal Eaze #21 Pregnant/ Collections Agency
Originally Printed: May 4, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
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