Archive for October, 2012

Disabled Army Veteran Alleges Collector Said he “should have died!”

Monday, October 15th, 2012

In my 20 years of practicing law and 15 years handling debt collection cases for consumers, I have had the distinct pleasure and honor of working with veterans and current service members of our armed forces. I have also had the pleasure of getting to know members of our armed forces from my experiences in Toastmasters (Palm Springs Toastmasters, Club # 8396), especially when I was an Area Governor, which Area included the U.S. Marine Base in 29 Palms, CA.

After 15 years of clients and others telling me what debt collectors have said during debt collection calls, debt collectors rarely surprise me.  However, when I was directed to this particular headline on, I felt compelled to blog about it here, so others can weigh in with their views on the alleged mistreatment.  This should be told and retold, until our members of Congress take immediate action to hold hearings and amend the law.

The article’s title summarized it well: “You should’ve served US better and died!’ Debt collector berates disabled veteran.”  This and other offensive things were allegedly said by a debt collector to a 100% disabled Army vet.

Why do debt collectors believe that they can get away with making such statements? Because it is their word against the word of the consumer, who often has not paid a debt. The he-said, she-said argument.  Also, defense attorneys for the debt collector regularly try to use the unpaid debt as a negotiation tool, if sued for collection harassment, under the Fair Debt Collection Practices Act (the FDCPA), which is stated 15 U.S.C. § 1692.  In particular, section 1692d prohibits debt collection efforts which harass, oppress or abuse any person, such as the debtor.

If Congress added to the FDCPA a provision that requires debt collection agencies to record every call and to securely store such recordings for at least two years (well beyond the one year statute of limitations period), that would be a great way to eliminate the he-said, she-said argument.  In adding a recording requirement, Congress should add to the FDCPA a provision that if the debt collector fails to make or save such recordings, then the burden of proof shifts to the debt collector defendant to show that the consumer’s allegations are untrue.

If Congress someday amends the FDCPA, I would also like to see a rule that prohibits settlements from having terms that attempt to restrict the free speech rights of the settling consumer or their attorneys.  In my experience settling debt collection cases, many debt collection agencies and their legal defense teams insist that the consumers and their lawyers sign a settlement agreement that prohibits them from talking to anyone or posting about the illegal collection acts on the Internet or social media.  If debt collectors can deny the general public from knowing the collection industry’s dirty tricks and practices, how can voters and government officials know when abuses are taking place, to ensure that the laws and law enforcement are keeping pace?

Robert Stempler
Twitter @RStempler

Asset Acceptance Did Not Serve Its Debt Collection Lawsuit, Monitoring Online

Friday, October 12th, 2012

Question: Per your fabulous on-line instructions – I looked on-line to find out about a lawsuit against me.  I noticed that Asset Acceptance, LLC filed a collection lawsuit against me to collect a older debt.  Unfortunately, they have not served me. What do you suggest I do? This is in California Superior Court and there is a hearing set in a couple of months. I was thinking of going to the hearing to see what they say.

My response:
First, it is not “unfortunate” that you were not served.  It is actually good news, as your time to respond to a lawsuit does not begin, until you (the defendant) have been served.  See link to my blog on deadlines to respond to a collection lawsuit. Thus, there is due date for you, until you have been served.

Second, I would not do anything. Fly below the radar and wait to see if you are ever served. It that occurs, marke that date on your calendar, so that you know exactly when your response will be due in court.  Until then, let’s just see what progresses and I certainly would not advise you to just show up in court, when you have not filed a formal response in the case.

Third, to be safe, every couple of weeks, I would visit the Court’s web site for this collection case for any activity, such as the filing of a proof of service. If that occurs, then you need to take action, even if no one has really come to serve you, because that is a formal representation to the court (though false) stating that the process server had served the summons and complaint.  Stay on top of this, because many times the process server states under oath that the defendant was served, when that never took place.  A default judgment may be entered after that, unless you take proper action.

Congratulations.  I checked online with the Superior Court’s web site. A recent entry shows that Asset Acceptance has dismissed its case against you without prejudice. They never served you, but for whatever reason, they dismissed their collection case.  It is unlikely that they will refile the case, now that they have decided to dismiss.  Thus, in my opinion you have dodged a bullet.

Once again, this proves that staying below radar, such as with my “Don’t Pay a Dime Strategy,” sometimes works and can save thousands of dollars and avoid bankruptcy. Had you been served, you would have contacted me, no doubt. I really appreciate your kind words.

Robert Stempler

Twitter @RStempler