How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask CML Bankruptcy Your Own Question

CML Bankruptcy
CML Bankruptcy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 24
Experience:  Highly experienced in Chapter 7 & 13 bankruptcy.
63205664
Type Your Bankruptcy Law Question Here...
CML Bankruptcy is online now
A new question is answered every 9 seconds

I was a sole-proprietor up until 01/01/2008 at which time a

Resolved Question:

I was a sole-proprietor up until 01/01/2008 at which time a had $20,000 in line of credit which is now pass due and turned over to a lawyer.

I had asked the debt buyer if they were licensed in Mass. The response I received was: XXXX Company was a creditor and not a debt collector and therefore not required to have a Mass License. Your debt is business debt not consumer / personal debt.

Do business debt buyers have to be licensed? do they have to follow Fair Debt Collection Practices Act?
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  CML Bankruptcy replied 2 years ago.

JACUSTOMER-5wmx0je1- :

Good evening. Let's see if I can assist you this evening.

JACUSTOMER-5wmx0je1- :

So, you had a debt for your business. Is or was the debt in your personal name or have a personal guarantee? Or was it in the name of your company only?

CML Bankruptcy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 24
Experience: Highly experienced in Chapter 7 & 13 bankruptcy.
CML Bankruptcy and other Bankruptcy Law Specialists are ready to help you
Expert:  CML Bankruptcy replied 2 years ago.
What Happens Now?

Your chat has ended, but you can still work with your Expert to get an answer to your question if you have not yet received one.

Come back to this page at any time to see additional information from your Expert.  You will also receive an email when your question is updated.  If you want to send a message to your Expert, use the box below.

If you have already received a satisfactory answer to your question, click the Accept button above.  Experts are credited for each accepted answer they provide.
Expert:  CML Bankruptcy replied 2 years ago.

Also, you reference the debt as being past due and turned over to an attorney for collection, but also mention a "debt buyer".

 

Is the attorney attempting to collect on behalf of a different creditor than who you originally had the line of credit with?

Customer: replied 2 years ago.
It was in my name. doing business as XXX
Customer: replied 2 years ago.
I spoke to the company who said they owe the debt now. I also received a letter for the bank which I had the line of credit saying X company now owns it. I have been served by a local lawyer on behalf of the debt buyer.
Expert:  CML Bankruptcy replied 2 years ago.

OK, so the debt is now owned by a third party, which does put them into the definition of debt collector. However, the attorney does not fall under that definition. Mass law defines these parties in Section 24 of Title 15, Chapter 93 of Massachusetts General Laws.

 

So your question is whether or not they are required to follow the collection laws of your state and the FDCPA if it is a business debt, correct? If that is your question, and based on the facts you've given (that you were operating under your own name with a d/b/a), it does not appear to have a bearing on this matter as you are personally liable for the debt - so any collection action against you would be regulated under state law and FDCPA regarding consumers - because you are a consumer. The qualification is not the type of debt, I get that the debt is business debt, but the type of borrower.

 

If you believe you have a defense to the collection of the debt, I encourage you to consult with an attorney licensed in your state who is familiar with Fair Debt Collection practice and potentially debt settlement.

 

If I can be of further assistance, please let me know. Otherwise, please remember to click on the green "accept" button so I can receive proper credit and compensation for my assistance.

 

Thank you for the opportunity to assist you. Best of luck to you!

Cara

Customer: replied 2 years ago.
Just to confirm you believe since I was a DBA that the debt would still be consumer debt. and therefor the "debt" buyer / collect agent would need to be licensed and follow all state and federal consumer debt collection laws?
Expert:  CML Bankruptcy replied 2 years ago.

I do believe that it is consumer debt if you were simply a person "doing business as" a business. I also believe that, based on your facts, the debt buyer is a "debt collector" under Mass laws. The only "wild card" here is not knowing which state you reside in...which is not included in your original question.

Customer: replied 2 years ago.
I live in Massachusetts. I called the AG office to confirm they are not listed, approved or licensed in Mass to collect debt. Based on the debt collectors (on their website they say they are debt collectors) response to me answering them they have filled suit.
Since I only had 5 days to response to the court here is what I answered with today:

Defendant’s Answer to Complaint

Current Answer to Complaint is being filed with Clerk of this court. However Defendant has received “Counsel of Plaintiff’s emergency request to withdraw” Therefore not informing defendant on who is now current counsel for Plaintiff.

Allegation 1 “FACTS” 3: Admit

Allegation 2 “FACTS” 4: Denied Mr. XXXX has not owned or operated XXXXXXX since 01/01/2008

Allegation 3 “FACTS” 5: Denied Defendant lacks knowledge about the truth and therefore denies allegations contained in “Fact 5”, Plaintiff has failed to provide Defendant with any kind of account numbers or documentation for alleged debt.

Allegation 4 “FACTS” 6: Denied: The request calls for admission of matter defendant has denied and thus it is improper.

Allegation 5 “FACTS” 7: Defendant denies the allegations contained in Fact 7 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.

Allegation 6 “FACTS’ 8: This request calls for admission of matter defendant has denied and thus it is improper FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES

 

  1. Failure to state a claim upon which relief may be granted
  2. Plaintiff fails to state a cause of action against the defendant
  3. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.
  4. The action is barred by the Statute of Frauds
  5. The action is barred the Statute of Limitations.
  6. The court would unjustly enrich the plaintiff by granting the relief sought herein.
  7. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with contract, account statements and purchase receipts to prove the amounts of the debt.
  8. Plaintiff’s attorney engaged in potential conflict of interest. (See attached Account Summary). Plaintiff’s attorney provided Defendant a consultation on 08/12/2011

 

 

 

WHEREFORE, the defendant ask the Court for Judgment: A dismissing the complaint herein with prejudice

Expert:  CML Bankruptcy replied 2 years ago.

OK. Good job on your call to the Attorney General of your state. Then, yes, my answer stands.

 

Best of luck to you!

 

Please let me know if I can be of further assistance in the future!

Customer: replied 2 years ago.
Since I only had 5 days to response to the court here is what I answered with today:
Defendant’s Answer to Complaint
Current Answer to Complaint is being filed with Clerk of this court. However Defendant has received “Counsel of Plaintiff’s emergency request to withdraw” Therefore not informing defendant on who is now current counsel for Plaintiff.
Allegation 1 “FACTS” 3: Admit
Allegation 2 “FACTS” 4: Denied Mr. XXXX has not owned or operated XXXXXXX since 01/01/2008
Allegation 3 “FACTS” 5: Denied Defendant lacks knowledge about the truth and therefore denies allegations contained in “Fact 5”, Plaintiff has failed to provide Defendant with any kind of account numbers or documentation for alleged debt.
Allegation 4 “FACTS” 6: Denied: The request calls for admission of matter defendant has denied and thus it is improper.
Allegation 5 “FACTS” 7: Defendant denies the allegations contained in Fact 7 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
Allegation 6 “FACTS’ 8: This request calls for admission of matter defendant has denied and thus it is improper FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.
AS AND FOR AFFIRMATIVE DEFENSES

Failure to state a claim upon which relief may be granted
Plaintiff fails to state a cause of action against the defendant
Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.
The action is barred by the Statute of Frauds
The action is barred the Statute of Limitations.
The court would unjustly enrich the plaintiff by granting the relief sought herein.
The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with contract, account statements and purchase receipts to prove the amounts of the debt.
Plaintiff’s attorney engaged in potential conflict of interest. (See attached Account Summary). Plaintiff’s attorney provided Defendant a consultation on 08/12/2011 ( I received advise from this lawyer before I had been served with this civil action)



WHEREFORE, the defendant ask the Court for Judgment: A dismissing the complaint herein with prejudice


Expert:  CML Bankruptcy replied 2 years ago.

While I can't give legal advice, only legal information, I can say that, not having seen the complaint, the answer looks very thorough. Best of luck!

Customer: replied 2 years ago.
1 more quick answer would the lack of not being licensed to collect debt in this state fall under "The action is barred by the Statute of Frauds"

If so would you believe I need to provide a follow up and your more info to support this claim?
Expert:  CML Bankruptcy replied 2 years ago.
Without reviewing the entire statute, I can't say for certain. However, if you believe it does, there is no harm in adding it to your answer. The case will not likely be decided based solely on your pleadings. If the hearing appears to be headed in that direction, you could always ask the court to give you time to retain counsel.
Customer: replied 2 years ago.
I had to provide my answer to the court today. Can I add more info to it after I have already submitted it?
Expert:  CML Bankruptcy replied 2 years ago.

You should be able to amend your answer if necessary.

Customer: replied 2 years ago.
I called into the Mass AG's office and the Division of Banks (they licence debt collectors) they stated the debt was business debt regardless of me doing business as my self. and therefore the debt collector doesn't have to be licensed or follow Mass debt collection laws.
Expert:  CML Bankruptcy replied 2 years ago.

Then there may be laws in your state that change the nature of the debt depending on what the borrower does with it. However, I am not aware of such a law. Generally the debt is obtained by a person or a business, and its nature is determined by that.

 

My question for you is why you believe this to be significant; their being registered or not. Perhaps that will allow me to assist you further.

Customer: replied 2 years ago.
based on Mass 93A http://www.lawlib.state.ma.us/subject/about/consumer.html Regulation of Business Practices for Consumers' Protection law. This debt collector would be in violation for not being licensed. I understand they don't have to work with me on any kind of payment plan which they have't an aren't offering to take anything less than full amount.
One more note. the civil action defendant is made out to my name and no where doesn't the former business show up.
Expert:  CML Bankruptcy replied 2 years ago.

Unfortunately, we're now venturing into the legal advice arena, which I am not allowed to give under the rules of the site.

 

However, one last thought of legal information is that it is possible to point out to the judge that they can't have it both ways. Unless you were a personal guarantee on the loan, they cannot sue a person if they claim it to be a business debt, for which they don't have to be licensed/registered with the state.

Customer: replied 2 years ago.
I did sign a personal guaranty of payment. Signed my name with the title of individually
Customer: replied 2 years ago.
Also just FYI when I spoke to the div. of Banks they sent me to their website. and I found this piece of info


Under 209 CMR 18.00, 18.02 Definitions reads as follows:
Consumer means any natural person obligated or allegedly obligated to pay any debt.
Expert:  CML Bankruptcy replied 2 years ago.

I would encourage you to seek the advice of an attorney licensed in your state. There may be legal arguments that could be made in your case, specifically as they pertain to the lack of licensing/registration and your capacity as a personal guarantee vs a business.

 

Any further information I could provide would be in the form of legal advice and I'm quite sorry I'm not permitted to give legal advice here.

Customer: replied 2 years ago.
which type of attorney should I speak to?
Expert:  CML Bankruptcy replied 2 years ago.
A consumer law attorney would be preferable; a bankruptcy attorney might be helpful.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
< Last | Next >
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
  • http://ww2.justanswer.com/uploads/TL/tleeders/2012-6-13_204815_TSL1.64x64.jpg Terry L.'s Avatar

    Terry L.

    Attorney

    Satisfied Customers:

    2204
    Better Business Bur 15yrs bankruptcy experience. Chicago Bar
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    950
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/CO/cortrightlaw/2011-12-5_4117_Kevin.64x64.JPG cortrightlaw's Avatar

    cortrightlaw

    Attorney

    Satisfied Customers:

    490
    Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
  • http://ww2.justanswer.com/uploads/Jay1968/2006-12-03_004423_JoeRossPhoto.jpg JoeLawyer's Avatar

    JoeLawyer

    Attorney

    Satisfied Customers:

    376
    Attorney in the practice of Bankruptcy Law since 1996
  • http://ww2.justanswer.com/uploads/DY/Dylatess/2012-9-11_1968_BHBTemplePhoto.64x64.jpg dylatess's Avatar

    dylatess

    Attorney

    Satisfied Customers:

    370
    35 plus years of experience specializing in bankruptcy law
  • http://ww2.justanswer.com/uploads/US/USLawAnswers/2012-9-20_23143_20090105211638Headshot3b.64x64.jpg Brent Blanchard's Avatar

    Brent Blanchard

    Bankruptcy Attorney

    Satisfied Customers:

    315
    Twelve years experience in all aspects of debtor & creditor BK.