Consumer Protection Law
Consumer Protection Law Questions? Ask a Lawyer Now.
Hi! LegalGems here. My goal: To Do My Best To Assist You. Please remember, I can only provide general information,as this is a public forum. Depending on the underlying debt, it is possible that the statute of limitations has expired. For example, if this was for a credit card debt, the statute is 3 years; if it is a written contract, then it is 10 years. If the statute has run (since date of last payment) then the creditor is unable to successfully sue on it as the running of the statute of limitations would be cause for a dismissal with prejudice. If the debt was paid in full via the garnishment, then the collection agency won't be able to collect on it.
You can request validation of the debt from the collection agency. They will need to prove that the debt is yours, and is valid. Often times collection agencies are unable to successfully prove this, as they don't have the necessary documentation, particularly if they are typically purchase old debt. They pay pennies on the dollar for these and often don't receive the underlying documentation. If you have proof of payment, you can be proactive and send proof of this, along with a cease and desist letter to the collection agency.
this was for taxes owed when i had a small business, the city garnished my checking account right after 7/11 and i also had to move my business, (i had run into hard times and was trying to catch up). the city was paid and now the collection agency is trying to get the money for Chase bank; the overdraft protection they gave away by mistake.
OK, I see. Thanks for that clarification. So the bank incorrectly gave away the overdraft protection money - so that would be there error- a garnishment is for money in the account, not overdraft money. Have you contacted the bank to advise them? It is possible that this was inadvertently sent to collections.
Yes, but nothing happened and now a collection agency has my cell phone # XXXXX i suspect will be running up my bill. they said it was a credit card and wont even believe that its was my overdraft prot.etc. it will be 10 years in december. can't see this bank helping me now. they said they shouldnt have given away my overdraft protection. but they sent it to collections never the less... not sure what to do now (thanks by the way)
If they are asserting it is a credit card, in all likelihood they don't have the underlying documentation. Pursuant to the Fair Debt Collection Practices Act, a debtor can request validation, and the collector must provide this within 30 days. (you are welcome!). Let me look into something.
ok. i just want to do the right thing here.
I understand. I'm downloading a few things - just a moment please.
Please see section 807 of the FDCPA http://www.ftc.gov/os/statutes/fdcpa/fdcpact.shtm#807 re: false or misleading representations. If they are asserting this is a c/c debt when it is not, then that would fall under this. However, requesting validation should take care of that error. Here is the statute that relates to validation: http://www.ftc.gov/os/statutes/fdcpa/fdcpact.shtm#809 - the letter should be sent certified, return receipt. But in the meantime, a letter to the bank would be helpful, as they are the original "creditor" and if you inform them that the collection agency is asserting this is a c/c debt, and explain the situation (and attach any documentation you may still have), asking them to cancel the account with the collection agency. This would stop the issue from the root of the problem.
Here is a sample letter to send to the bank - it's from Georgia's government, but is a great boilerplate to conform to your particular situation. http://consumer.georgia.gov/consumer-services/sample-complaint-letter-to-send-to-a-business
Thanks so much for the advice! will do! extra big happy face for you. have a great weekend!!!
thanks for the sample letter
You are welcome. Don't forget the validation letter also (sorry, I've been trying to find a sample with no luck).
And you have a great weekend too!
bye from New Orleans