Expert: Michael Brotherton - 6/18/2008

Question
QUESTION: I understand your caution when you say I have a good case-
just someone else to say that to me sounds promising.
And since you said that, I am a little more confident
and less worried about going to court. I will talk to
Legal Aid as soon as I get a response from the court.. which I guess will happen when the collection agency
receives my motion and all other paperwork and they respond
to it...
Although I did write the FTC and the collection agency's
state attorney general (and didn't receive a response)
if they don't drop this, I could try it again and again.
It's funny, I forgot to mention... I am currently dealing
with ACA - Association of Collection and Credit Professionals - the umbrella organization for collection
agencies (?). They received a response from Asset in
Warren, Michigan in regards to the dispute/ complaint I sent them - Asset is saying they don't feel my dispute warrants them dropping the wage execution... interesting, since in my dispute I repeatedly asked for validation...and they still haven't provided it.
Here's another question... maybe you could give me your
advice? Although a wage execution is in place, although
they are garnishing my wages, etc., although they claim
I never contacted them and wrote them letters, etc (the
letters I wrote them in 2005, 2006 were not certified)
is it still my right to receive whatever documents they
have on file regarding this fraudulent account? My pleas
for help went ignored for a year, and then wham, a
wage execution, and I continued to ask, and they continued
to ignore. I asked again, through certified mail, etc.
and they responded this time, but say since their records
don't show I spoke with anyone, that my letter contradicts
certain facts (it totally doesn't, and I have the perfect
rebuttal for that) and they are saying they feel they
are not acting unethically and feel the wage execution
is legal... can I send that letter to the State Attorney
general and say, See? They are still denying me a validation of this debt!! Do I have any legal standing on
that point? That I can still request validation, and
they are still denying me... isn't that wrong?
Please write back if you any advice...
Thanks!!

ANSWER: It is not uncommon for collection agencies to ignore these types of requests for validation and sometimes even the governing agencies don't take action unless you make a lot of noise. Be persistent and keep banging away until you get results.

One thing you may attempt is to file for an injunction to stop the wage garnishment and demand a hearing. The injunction would at least temporarily stop the garnishment until you have a chance to plead your case and the courts make a decision.

I wouldn't waste my time dealing directly with the collection agency. Deal directly with the courts and let them enforce your rights. Also continue complaining to the governing agencies until they do something. File all your communications through the courts by certified mail.

Keep me posted on your progress. Your information can help others deal with similar situations.

Thanks and good luck.

Mike


---------- FOLLOW-UP ----------

QUESTION: Mike - sorry about this but one more question?
They filed for the wage garnishment (and won-because I didn't know about it) before their
statute of limitations was up. I left my job in January
and they were left wondering where I was... they re-file
for another garnishment in May 2008. According to my
credit report, the hard fact is that MBNA charged off this
account in February 2001 and Asset opened it up in 05/2002.
I live in New Jersey, the statute is 6 years to collect
on credit card debt. Although they HAD a garnishment in
place, they re-filed for a garnishment AFTER the SOL...
am I on to something? AND... what are the odds that they
won't pursue this since I asked for validation and all that
through my motions to the court and I know for a fact they
have nothing to prove this was me....
Thanks Mike!
Yasemin

Answer
The problem is that they also have a judgment against you which extended the SOL. If it was past the SOL when they got the judgment  or you were not served you may have an opportunity to have the judgment overturned. This can be difficult but not impossible. File a motion with the courts for an injunction or ask for a hearing on the garnishment. Then plead your case. Make sure you have documentation including your credit reports to show the date of last activity or DLA. This is the date of last payment or charge against the account. It is the date that will confirm the SOL.

Before taking action please consult at least two attorneys and determine which is the best route, filing a motion to overturn the judgment on the grounds that the SOL is past or file for an injunction.