Expert: Jason Shear, Esq. - 10/23/2008

Question
Hi Jason,
My mom was an authorized user on my late father's credit cards (3). She has used the cards since he passed away and had been making all monthly payments faithfully. She is living on social security, with no income except for what my brothers and I give her.
She can't make the payments anymore for she needs nursing care, to help her continue living an independent life.
My question is... what will happen if she doesn't pay the cards, and what will happen if she gets a summons. She's 85 years old and already a collection agency called and told her to settle on the bill because she committed fraud !!!
BTW after I called the bank on one card, they closed the acc. and told me the acc. was released of debt because it was my late father's card, and before the next payment was even due a collection agency called to try and get her to make a settlement, telling her she committed fraud and that she stole from the bank !

Thank you for any help you can provide  

Answer
Hope all is well, sorry to hear about your father.  To answer your first question.  If she does not pay the cards she will continue to be harassed by the collection agencies representing the credit card company.  She may get a summons.  However, most credit card companies use agencies to collect for approximately 6 months and then usually sell the defaulted accounts off at a discount to debt buyers who pay a fraction for the right to collect the full amount.  Debt buyers, from my experience, are usually the companies filing mass lawsuits against consumers.

In terms of your mother being accused of fraud and theft, do not worry, this is just collection agency nonsense in hopes of scaring your mother into paying.  Under the penal law of most states, an individual would have to have the specific intent to defraud a financial institution.  Your mother innocently using the cards she always used with her late husband's permission would not fall under that criteria.  Besides, a collection agency would not have standing to file any type of criminal complaint, only an original creditor would.  If this collection agency threatened your mother with arrest she has a claim against them under the Fair Debt Collection Practices Act (FDCPA), which could mean money damages for her.  Also, read the FDCPA to see if this CA violated any other parts of the FDCPA.

If the telephone calls are too much, send the collection agencies a cease communication letter stating that they are not to contact her in any way.  After receipt of the letter, the Collection Agency can not keep calling your mother in an attempt to collect this debt.

If in the future your mother is sued and the creditor obtains a judgment, her social security can not be garnished to pay off the judgment.  However, if she owns a house, in most states, a lien can be put on any real property she has.  If a judgment is obtained against her and you or your siblings help your mother out financially, do not put that money in an account in her name.  Only keep her SS income in an account in her name.  If she needs help with a gas bill, for example, pay it directly out of your account.

Hope this answers your question.  If you have any questions about what I wrote or have any follow up questions, please do not hesitate to call 9:30am to 8:30pm EST.

Jason Shear, Esq.
NY Consumer Attorney
716-566-8988