Unauthorized Access of Credit Reports: Your Rights Under the Law

Your credit report is your private financial information. This information is every bit as private as any private financial information you keep in a locked drawer in your home or office. You have an absolute right to keep it private.

Your credit reports are maintained by various credit bureaus. The three largest and most famous credit bureaus are Transunion, Equifax and Experian.

Unlike a locked drawer in your home or office, however, the only thing someone needs to obtain your credit report from a credit bureau is an account with that bureau. Thus, anyone with an account has access to your credit report, whether or not you have given them permission to access it.

Examples abound where businesses have accessed credit reports wrongfully, without permission and without a proper purpose. I have heard of insurance industry law firms and insurance companies pulling credit reports for personal injury plaintiffs to find out if they’re financially strapped, and thus more likely to accept an insufficient settlement offer. Some unscrupulous companies pull credit reports to find out if you qualify for a loan they are offering, before they have even contacted you about the loan. Some pull it for less savory purposes yet, such as to determine where you shop and spend your money. These are all improper purposes for accessing someone’s private credit report.

All of this information is private and legally is supposed to remain private unless one of two things happens:

1. You give someone permission to pull your credit report, or,

2. The person pulling your credit report has a permissible purpose for pulling it.

There are very few permissible purposes. The law is really your only safeguard against unscrupulous persons pulling your credit report for improper purposes.

Examples of Giving Someone Permission to Pull Your Credit Report

Whenever you apply for a loan or a credit card, you normally sign a form which gives the prospective creditor permission to pull your credit report. This is the usual manner in which credit card companies, car dealerships and lenders access your credit report.

Beware, however, that some companies forge consumer signatures on forms to gain permission when they don’t have the consumer’s legitimate permission to pull your credit report. Thus, telemarketers cannot pull your credit report without your permission even if they are trying to sell you a loan. Car dealerships do not have permission to pull your credit report simply because you walk onto their lot to look at a few cars. If you pull your credit report and you find instances where companies have pulled your credit report without your permission, suspect that they may have done so by forging your signature. This happens more often than most consumers realize.

Examples of Permissible Purposes for Pulling Your Credit Report

There are very few: in response to a court order, in connection with an employment application and when a consumer actually applies for credit or insurance.

If you do not initiate the transaction, then a credit card company may only pull your credit report if they are making you a “firm offer of credit,” which is definitely quite a bit more than those endless letters from credit card companies telling us that we’ve been “Pre-Approved”, but we have to fill out an application anyway.

Persons or companies who pull your credit report must certify that they are pulling it for a permissible purpose. If a company pulls your credit report for a permissible purpose and then uses it for an impermissible purpose, then that company has violated your rights and the law. Companies may only pull and use your report for a permissible purpose.

In general, you need to pull your credit report and inquire into any credit entry for a credit card company, a finance company or an insurance company you do not recognize. It may well turn out that some company has pulled your credit report without your permission and without a permissible purpose.

How Do I Find Out if Someone Has Pulled My Credit Report Without A Permissible Purpose?

Pull your credit report from the three major credit reporting bureaus. They often share information among themselves, so negative credit entries to one bureau frequently find their way onto your credit reports with the other two bureaus.

If you see entries on your credit report concerning companies pulling your report without your permission, or companies you do not recognize, then you should inquire further as to whether someone has improperly accessed your credit report.

The answer, unfortunately, may well be a yes.

Why is Impermissible Access to One’s Credit Report Harmful?

Apart from being an invasion of your privacy, credit “pulls” actually lower your credit score. Someone who pulls your credit report without permission and without a legitimate purpose directly harms you by affecting your credit score.

What are My Remedies If I Discover that Someone Has Wrongfully Pulled My Credit Report?

If you have any questions or doubts, first contact the company which pulled your credit report and ask them, in writing, why their company name appears on your credit report. Sometimes there is an innocent explanation, but don’t be surprised if you get the run-around or if it turns out that this company did not have any permissible purpose when they pulled your credit report.

If you do find out that there has been an impermissible pull of your report, or if you just cannot get good answers to your questions, then see a lawyer. You are entitled to a penalty per violation of your right to financial privacy, even if you do not directly suffer damage as a consequence of the improper pull. There is also the potential of punitive damages, as well as any out-of-pocket losses you have suffered. The statute also provides that the person who improperly pulled your credit report must pay for your attorney’s fees, so these cases are frequently affordable even to consumers who cannot otherwise afford an attorney.

Robert F. Brennan, Esq. is a principal with Brennan, Wiener & Associates, an AV-rated law firm in La Crescenta, CA.  His firm specializes in consumer protection litigation, including wrongful credit damage and abusive debt collection.  He can be reached at: http://socalcreditdamage.com

Can they Garnish my Wages?

Recently, I’ve had several calls to my office about Garnishment of Wages, so perhaps a short article is in order. Wage Garnishment is a legal procedure in which a person’s earnings are required by court order to be withheld by an employer for the payment of a debt. The key to the preceding statement is the term “court order”. A garnishment of wages cannot occur without a judge agreeing to the garnishment. This means that some type of court action must occur. The creditor cannot merely attach or garnish your account without due process of law. In Pennsylvania, where I practice law, a Garnishment of Wages can occur only under limited circumstances. The most prevalent circumstance is for an obligation of child or spousal support. Garnishment is usually very easy to procure under those types of matters. Other circumstances where garnishment of wages can occur include repayment of PHEAA student loans, room and board for four weeks or less and obligations relating to a final divorce distribution. In PA, these are just about the only instances when your wages can be garnished while they are in the hands of your employer.

Many of the inquiries that I receive at my office are regarding credit card collections and garnishment of wages. Except under very limited or special circumstances, in Pennsylvania, an ordinary creditor cannot garnish your wages on a Pennsylvania case. This does not mean that the money that you earn cannot ever be garnished. There is a distinction here that must be made. Once the money is earned and deposited into your bank account, the monies are no longer wages. Those funds become part of the corpus of your bank account and are subject to garnishment. If a creditor is privy to your banking information AND if they have obtained a judgment against you, they will be able to garnish the funds in your bank account, even if those funds were at one time wages. This type of “regular” garnishment does not require a court order, but instead requires the creditor to obtain a judgment against you in a court of law. After a judgment is obtained, a creditor can commence garnishment proceedings by applying for a Writ of Execution. The Writ of Execution is delivered to your bank and your accounts are then frozen.

Greg Artim is an Attorney with offices located in Pittsburgh, Pennsylvania. For more answers to your legal questions, please visit his website at www.gregartim.com

Worried About the Fair Debt Collection Practices Act?

Do you work for a financial institution that collects debts? If so, do you know whether the Fair Debt Collection Practices Act, 15 U.S.C. 1692 (the “Act”) (http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm) regulates what you do? Do you fear that your collection practices might subject you or your company to liability? Relax. The Act generally does not apply to commercial foreclosures or the collection of commercial debts. (See my 11-1-06 article “Just What Is Commercial Foreclosure Law?” for more background.) Personal, Family or Household Purposes. The Act focuses on obligations arising from consumer transactions. Bass v. Stolper, et al., 111 F.3d 1322 (7th Cir. 1997). “Debt,” for purposes of the Act, is defined as an obligation to pay money arising out of a transaction that is “primarily for personal, family, or household purposes…” 15 U.S.C. 1692a(5). A nice article in the American Law Reports Federal explains the concept in detail: “What Constitutes ‘Debt’ for Purposes of Fair Debt Collection?” 159 A.L.R. FED. 121 (2000). Even individual guarantors of an obligation do not fall within the scope of the Act if the guaranty is part of a commercial transaction. See the Federal Trade Commission’s website (http://www.ftc.gov/bcp/conline/pubs/credit/fdc.htm) for more discussion. My practice and blog are dedicated primarily to commercial deals, not consumer loans. If you’re in the same boat, then essentially all you need to know about the Act is (1) it’s out there, (2) a violation of it is a bad thing, but (3) it generally doesn’t apply to you.

Behave Appropriately. The legal industry has some very creative attorneys, as well as some judges inclined to protect debtors. There are gray areas in the law. Legal principles evolve, as can the interpretation of statutes like the Act. For instance, the ALR article cites a case from Mississippi in which a commercial debt essentially was transformed into a consumer debt covered by the Act when the debt collector made “harsh, abusive, foul, obscene, indecent, uncouth, violent, threatening, intimidating, and harassing” phone calls to the debtor. So don’t be reckless. Be mindful of the spirit of the Act, which Congress designed to eliminate abusive, deceptive, and unfair debt collection practices.

As a general proposition, however, you need not sweat the details of the Act if you’re confident that you’re dealing with a commercial transaction. When in doubt, however, follow the Act. Or, contact your lawyer for advice. In the past few years, there has been plenty of litigation involving the application and enforcement of the Act, so recent case law exists to help you or your lawyer determine whether your actions may be regulated.

John D. Waller is a partner at the Indianapolis law firm of Wooden & McLaughlin LLP (www.woodmclaw.com). He publishes the blog Indiana Commercial Foreclosure Law at http://commercialforeclosureblog.typepad.com. John’s phone number is 317-639-6151, and his e-mail address is jwaller@woodmclaw.com.

What Is a Debt Settlement Attorney?

A debt settlement attorney specializes in negotiating with creditors to reduce the amount of debt the individual must repay. They will contact each one of the creditors and each collection agency to stop the late fees, penalties, and premiums building up on all accounts. The debt settlement attorney will establish agreements so the credit card companies and collection agencies will contact the attorney instead of the consumer. It is also the responsibility of the debt settlement attorney to obtain the consumers credit report and work to remove any misleading, unsubstantiated, or incorrect items. This is a very important service that should be utilized by the consumer to restore credit ratings and create a plan for future financial management. Using a debt settlement attorney is vastly different from credit counseling. It can be risky to your credit, but if your credit is already destroyed you may have little to lose and more to gain by settling outstanding debt. Debt settlement is much more aggressive than credit counseling, and it can get you out of debt in half the time of credit counseling. Many states have laws regulating debt negotiation companies. To see if your state permits debt settlement, contact your state Attorney General.

If you ignore the debt long enough, you stand a good chance of never hearing from the creditor again. Seven years after the debt is written off, the negative listing disappears from your report altogether. But if you pay the debt sometime before the end of that period, the seven year cycle starts all over again, not exactly what one would call an incentive. It’s like getting time added to your sentence for good behavior.

Fortunately, creditors make their money by collecting the debts, not by reporting negative credit information. Creditors recognize this catch-22, and are therefore often willing to delete the negative listing upon settlement. If you are going to settle with a creditor, be sure to have your debt settlement attorney negotiate removal of the listing from your report.

Keep in mind that using a debt settlement attorney usually applies to unsecured debts like credit cards, medical bills and department store cards. Things like mortgages, student loans, alimony and child support fall into the category of secured debts and there is usually not much that a debt settlement attorney can do with these types of debts.

In debt mediation the consumer confers his mediator with limited power of attorney to work out lump sum settlements on specified debts at reduced amounts. The consumer ceases their credit card payments and instead pays the mediator an agreed amount monthly to fund settlements.

Debt mediation addresses the amount owed (principal) as well as interest and fees, sometimes reducing the total obligation to as much as 40% of the original debt. Creditors prefer such settlements to the risk of bankruptcy and report such settlements “paid as agreed” on the consumer’s credit record. Your credit could, however, be affected in a negative manner. Some creditors will not mark their debt paid as agreed, and it will remain on your credit report for a number of years. Consumers still opt for debt settlement because they find it preferable to bankruptcy. Usually, the way it is reported on your credit record involves the words “Settled” or “Settled as Agreed” or “Paid as Agreed”. However, all the late payments may remain on your credit report until the statute of limitations runs out. At that point, credit repair might help to remove the negative marks if the reporting creditor fails to provide documented proof to the reporting agency

Gust A. Lenglet has been an accountant and financial advisor for many years. He is President and CEO of Crown Financial Concepts, Ltd. and offers Budgeting software to create a household budget. He is also an accomplished author in the tax, legal, and education fields, as well as debt consolidation and relief.

I’ve been sued by a collection agency, what do I do now?

I just received notice of a lawsuit that was filed against me by a collection agency. What do I do now? I get that type of phone call at my office about once a week. Fortunately, the caller has made the obvious correct choice in contacting an attorney right away. This is an important aspect when a collection agency is involved because a collection agency lawsuit is a different type of lawsuit. The collection agency has either been hired by the original creditor or has purchased the right to collect the debt off of you from the original creditor. That makes a little more work for the collection agency and may provide you with a defense. A review of the lawsuit is the first order of business. As an attorney, I ask three questions right away that form the basis of the defense of the lawsuit. 1. Is the Debt is legitimate? 2. Does the collection agency have the legal right to attempt to collect it from you? 3. Does the lawsuit meet all necessary legal requirements to proceed?

Looking at these questions individually, let’s start with “Is the Debt legitimate?” The client has to advise as to whether they ever had this type of loan or credit card. If a collection agency is involved, the Debt may have been incurred years ago, and may be difficult for the client to remember. Time is an important factor here, because all states have Statutes of Limitation that define when a lawsuit must be filed. In Pennsylvania, the Statute of Limitation to collect on a debt is typically four (4) years, with certain exceptions.

The second question is whether the collection agency has the legal right to attempt to collect from you. What I look for here is any evidence that the collection agency has authority to proceed. This might be indicated by a purchase agreement or an assignment from the original creditor. In my experience, I often find that the collection agencies fail to attach this document to their lawsuit. In that instance, I would place an objection to the suit to make the collection agency prove that the have the legal right to proceed. If they cannot, I move to have the lawsuit dismissed.

The third question is whether the lawsuit meets all of the necessary legal requirements to proceed. Again, in my experience, I have found that collection agencies often fail to properly articulate the claims against the debtor, either by means of failing to provide enough information or failing to provide the proper documentation.

If you are sued in Pennsylvania by a collection agency and can answer NO to any of the three questions posed above, you likely have a valid defense to the lawsuit. Contacting an experienced attorney is the right first step.

Greg Artim is a consumer lawyer based in Pittsburgh PA. For more information regarding this or other legal issues, please visit his website at www.gregartim.com

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Chapter 13 Meeting of Creditors

Have you recently filed Chapter 13 Bankruptcy? Do you have an upcoming Meeting of Creditors hearing? Many Chapter 13 debtors get a little nervous about the meeting since they are not exactly sure what to expect. So, I decided to take some notes on exactly what happens during the meeting for the benefit of those who have an upcoming meeting. Of course, I knew what was going to happen since I’ve done these hearings before for my clients, but I wanted to note the exact words this hearing officer (trustee) was using and the exact questions she was asking. Sometimes, clients have visions that creditors are going to sit there and hammer them all day with questions or something. This is just not the case, in my experience. Let’s start with some basics.

What is the Meeting of Creditors?

The Meeting of Creditors is a hearing that is held 20 to 40 days after the bankruptcy petition is filed. The debtor must attend this meeting, at which creditors may appear and ask questions regarding the debtor’s financial affairs and property. If a husband and wife have filed a joint petition, they both must attend the creditors meeting. The trustee also will attend this meeting. It is important for the debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests.

The trustee is required to examine the debtor orally at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy, including the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt.

In some courts, trustees may provide written information on these topics at or in advance of the meeting, to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors. This paragraph was adapted from Bankruptcy Basics, a FREE publication, to receive a copy go to http://www.bankruptcyzone.com/index.php/free-ebook/.

What Can You Expect at the Meeting?

Well, that’s what this article is all about. Let’s talk about that:

If you have an upcoming meeting of creditors hearing, the best way to overcome your fear of the unknown is simply to go to a meeting(before yours) and just sit there and observe. That will probably prepare you much more than if you learn about it second hand.

So what I’ve tried to do is give you blow by blow of what happened at this particular meeting of creditors about a week ago (December, 2005). I primarily practice Bankruptcy in the Northern District of California, although I can practice anywhere in California.

Disclaimer: The following is an example of what occurred on a particular date in my jurisdiction (Northern District of California, Oakland Division) at a Chapter 13 Meeting of Creditors hearing in December, 2005. This may vary dramatically from what occurs where you live. Therefore, do not think that the way the meeting is presented above reflects what will occur in your jurisdiction. You should speak to your attorney about what occurs in your particular jurisdiction. This article is for informational purposes only and does not constitute legal advice.

That having been said, in the Oakland Division of the Northern District of California Bankruptcy court, the meetings are held at a location other than the actual Bankruptcy court. The court itself is across the street. The meetings are held in a suite on the 6th floor of the Federal Building. Inside the suite, there are two main rooms. One is a waiting room where attorneys can confer with clients, talk to each other, etc… The other room is where the actually meeting of creditors hearing occurs. There is usually a person there to help direct you and answer basic non-legal questions about the process.

1. So, let’s say your hearing is at 9 A.M. You get there at 8:30 or so and go into the waiting room. The trustee in our jurisdiction hands out a booklet called “The Chapter 13 Debtor Handbook” which is for you to take home and read and tells all about the process. You are then directed to watch a 15 minute video that explains the basics of bankruptcy and particularly Chapter 13 bankruptcy.

2. Once the video is over, the trustee’s assistant comes into the waiting room and announces that the meeting is about to start and that anyone who is on the 9 A.M. calendar should come into the room where the meeting will be held. There are about 20 or 30 seats and all of the people on calendar head in to the adjoining meeting room.

3. The hearing begins. Trustee starts the calendar and introduces herself. She talks about what will occur at the meeting. The trustee states that she will call debtors individually and that she will question each for approximately 5 minutes. If creditors are present, they will be able to ask questions for 5 minutes per case per debtor. The debtor is to have their Social Security card and ID ready to show to the trustee when their name is called. She says that all payments into the Chapter 13 plan are to be made in cashier’s check or money order. Debtors are not allowed to incur new debt. If you absolutely need to purchase a car for transportation, the trustee must approve how much you can spend on the car and approves the purchase contract. You can only sell or refinance your real property with permission of the trustee. Permission is only given to Title companies when in escrow. In other words, the deal must be already in place.

4. The Trustee calls the name of the first debtor. The debtor and their attorney comes up to the table. The attorney sits on one side of the table and the debtor on the other side. (Picture a long cafeteria-style table. The trustee and her assistants are sitting at the middle of the table facing the front of the room. The attorney and debtor are sitting at the far ends of the table opposite each other).

5. The trustee asks for debtor’s ID and Social Security Card.

6. The attorney states his or her appearance for the record. (e.g. “Leon Rountree, appearing on behalf of John Doe debtor”)

7. The Trustee swears in the Debtor: “Do you solemnly affirm under penalty of perjury that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth”?

8. Trustee states for the record: “I have seen the debtor’s Social Security card and identification and Social Security number on the card matches the number on the petition.”

The trustee then asks the debtor the following questions:

9. “Is your home address still: “[Home Address]”?

10. “And do you still work at [Place of employment] as an [occupation]”?

11. If the debtor owns a car and is keeping it: “Is your car insured”? “Have you made the necessary car payments”?

If the debtor is not keeping the car, “Are you surrendering the car”?

12. “Do you own any real estate”? If yes, “Have you made all the necessary house payments since the petition was filed”?

“When did you make those payments”?

“Is the house insured”?

“Do you pay the property taxes directly”?

“Are the property taxes current”?

13. “Have you filed all tax returns for the last five years”? If not, “When will they be filed”?

14. “Do you owe any money to the IRS or the California Franchise Tax Board”?

15. If debtor has credit card debt, “Have you destroyed all your credit cards”?

16. “Do you believe that you can make monthly payments of [Chapter 13 plan payment] per month”?

17. “Did you review the bankruptcy petition and schedules before signing them”?

18. “Is everything in the petition and schedules true and correct”?

19. Are there any creditors that wish to be heard in this matter?

If everything runs smoothly, the trustee states that she will recommend to the Judge that the Chapter 13 plan be confirmed.

That’s it! When they say that it will last about 5 minutes, they usually mean it. The only exception might be if there are objections of some kind to the plan or a married couple is filing in which case the meeting may last a few minutes longer.

Disclaimer: The above is an example of what occurred on a particular date in my jurisdiction (Northern District of California, Oakland Division) at a Chapter 13 Meeting of Creditors hearing in (December, 2005). This may vary dramatically from what occurs where you live. Therefore, do not think that the way the meeting is presented above reflects what will occur in your jurisdiction. You should speak to your attorney about what occurs in your particular jurisdiction. This article is for informational purposes only and does not constitute legal advice. This article does not create any attorney client relationship. Copyright 2005, Leon H. Rountree III

Leon Rountree III, Esq. is a consumer bankruptcy attorney based in Oakland, California. His firm assists consumer and small business debtors in Chapter 7 and Chapter 13 bankruptcy cases. More information about bankruptcy and the firm can be found at his web sites located at: http://www.bankruptcyzone.com and http://www.leonrountree.com.

leon@bankruptcyzone.com

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Credit Damage

Until recently lawyers for victims of credit damage had little possibility to collect for damages beyond medical treatment, lost wages and property loss.

Insurance companies threw up their hands in sympathy, claiming victims can only be compensated for what can be measured tangible goods and services. But, what happens when the victim has lost considerable time from work, the family bank is broke and monthly payments on mortgages, car loans and credit cards payments are missed? Regardless of the haggling between lawyers and insurance companies, it’s the credit victim who ends up having to live with a bad credit rating.

Today, there are legally accepted means for measuring loss of credit through the procedure of Credit Damage Measurement (CDM). CDM is fast becoming a potent tool for recoverable credit damage awards when the damage is not self-inflicted. Previously, both judge and jury, and especially the insurance companies, refused to acknowledge CDM claiming it was speculative because they could not define it as tangible damage. However, in case after case, victims of credit damage who use the CDM method are getting compensation for credit loss. Many factors are changing the old mindset including credit bureau technology improvements, the application of the Fair Credit Reporting Act (FCRA), risk scoring sophistication, and the development of CDM as an objective, repeatable method that measures out-of-pocket damage reliably.

Credit Ratings and Recovery. The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.

A person with bad credit is viewed with suspicion and is charged significantly more for future extension of credit because the lender feels the need to protect against a greater risk or default says Tom Key, a civil litigator practicing in Tustin, CA.

Over the years I have heard reports of financial damages from clients who have been wrongfully terminated, defrauded, injured in an accident or suffered losses from breach of contract, Key says. These victims were especially distraught over the fact that their prime credit reputation, carefully nurtured for years, is destroyed overnight. It seemed to me that there must be a way to compensate victims for that type of loss.

Key has witnessed the reactions of many jurors who failed to award a victim of credit damage their rightful compensation simply because they could not quantify the damages. Jurors want a specific loss that they can count, hold and see, says Key. Their reasoning is that they need to know that it is genuine. They have a tough time awarding damages based on sympathy. In order for them to confirm authenticity of a claim, they want to see its quantification.

Measuring Loss of Creditworthiness

Assuring authenticity has been a sticky situation when it concerns measuring out-of-pocket loss for victims of credit damage until now. Attorneys who represent victims of credit damage are now utilizing the Credit Damage Measurement method to recover out-of-pocket losses for their clients. CDM measures the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit, says Key.

In addition, the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

Key continues, For example, if a clients credit was near perfect before a triggering event, and is subsequently damaged by the event, the CDM procedure can illustrate before and after analyses, calculating the cost of the same loans with the two different credit reports, Pre- injury credit compared to Post-injury credit. In many cases, CDM clients have already realized significant compensation. In one such case CDM was instrumental in recovering $56,000 for damaged credit reputation. That calculation is the difference between what refinancing a $140,000 loan would have cost my client with their prior rating, and what it will cost them out-of-pocket with their damaged credit rating measured over a seven-year period.

Isolated Compensation vs. Repeatable Compensation
The CDM method of measuring intangible credit loss is increasingly becoming the basis of recovery for victims of credit damage. Its changing the way judges and juries measure recoverable out-of-pocket loss, and then can compensate for loss of credit expectancy. Certainly there are still some skeptics, mostly defendants. Technically, credit damage measurement is intangible. However, CDM has proven an objective and practical procedure to calculate out-of-pocket damage for companies or families to compensate for their credit damage.

To have this kind of measurement is an exciting complexity in our society, says Key. CDM is very understandable and a rather simple way to come to a conclusion of loss for the victim. If you understand the math and are an expert at reading credit reports, the calculations and recovery are undeniable. It’s a method of turning isolated compensation into repeatable compensation. It’s changing the way jurors rule on these damaging cases. Because of this method, victims of credit damage can be more fairly and more completely compensated for out-of-pocket damage.

Attorney listing is an informative website that looks into all aspects of Compensation from business firms throught to banks.
To find out more visit Attorney’s

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Anatomy of an International Debt Collection Case

Introduction

In late June of 2003, I received an e-mail from Daniel Harris, who introduced himself as maritime lawyer from Seattle. He had found me through the internet and was asking me whether I was interested in helping arrest transshipped cargo in Dalian. I was excited about the task and I surfed Dan’s website [http://www.harrismoure.com] and learned Dan owns a small international law firm in Seattle, called Harris & Moure. I replied to him immediately and sent him some relevant provisions concerning cargo arrests under China legal system. He was very happy with my prompt and helpful reply and we soon were working together on the case. He later told me he was so impressed with my responses that he had picked me over numerous other lawyers throughout China.

Brief of the case

OOO Bolshoretskoe is a Russian fishing company that sold 400 Tons of pollock worth around US$700,000 to Alimex Seafood A/S, a Danish company. The pollock was scheduled to be transshipped from Dalian to Europe. Alimex had not yet paid Bolshoretskoe for the product. Bolshoretskoe owed Daxin Petroleum Pte, Ltd., a Singapore fuel supply company, around US$400,000 for fuel. M/V IVAN POLZUNOV, the vessel carrying the pollock, was scheduled to call on Dalian on 4 July, 2003. Our task was to seize the pollock for Daxin to get Bolshoretskoe to pay its debt.

Bolshoretskoe’s debt to Daxin arose in July and December, 2002, when Daxin supplied bunker products for two Russian fishing vessels, TOSNO and PHOENIX. To secure these fuelings, Bolshoretskoe signed a guarantee letter to Daxin in which “Bolshoretskoe assigns all receivables resulting from production, deliveries and selling of Salmon or Pollock on/from board of F/T PHOENIX in favor of Daxin for the amount of the bunker supply. In addition, Bolshoretskoe agrees that property title to salmon or pollock products covering the amount of the bunker shall pass to Daxin immediately upon processing and/or storage of the products on board of PHOENIX.

Daxin was not paid on its two fuel deliveries, and Bolshoretskoe was refusing to pay. It is estimated the TOSNO and PHOENIX owed a combined total of around $20 million in unpaid debt to various creditors.

Intensive and orderly preparation for cargo arrest

After studying the relevant documents and analyzing the entire history of the case, we determined that either Bolshoretskoe or Alimex would pay Daxin if we arrested the cargo in China. So we set about to do just that.

First, we prepared all necessary legal documents pursuant to Chinese law. Due to the various different legal systems and languages involved (China, Russia, Singapore and the United States), our preparations were extremely time consuming. As we were preparing our documentation and firming up our strategies, Dan was also preparing to come to Dalian.

However, the day before Dan was to leave the United States, he learned that the pollock’s transport vessel, the IVAN POLZUNOV, had secretly changed its plans in an effort to avoid arrest. It would not be calling Dalian on July 4, 2003; it would be calling Qingdao on July 8, 2003. Because all legal documents had been prepared for the Dalian Maritime Court, Bolshoretskoe’s change in plans necessitated we completely change our plans also. With time so much of the essence, we asked Sunfanlong, who works in Qingdao Wincon law firm, to work with us and we transferred all legal documents to him.

Successful Arrest of the cargo

On July 7, 2003, Dan arrived in Qingdao. The IVAN POLZUNOV arrived in Qingdao the next day and began to discharge 15 containers of pollock for transshipment to Europe. When the judge, Wincon’s lawyer and Dan saw that the containers were being offloaded on trailers for transport to the container terminal, they went straight to the terminal to deliver the arrest papers on all 15 containers. However, after waiting nearly five hours at the terminal and waiting well into the night, only three containers had arrived and been arrested. Nobody seemed to know what had happened to the other twelve containers. We were concerned Bolshoretskoe and/or Alimex had learned of our arrest warrant and had hidden the other twelve containers. Adding to our worries was that we had by now learned that Alimex was to ship all 15 containers to Europe the very next day. We checked everywhere for the missing twelve containers. We checked with various trucking companies. We checked all around the terminal. Nothing. Eventually, we learned that the twelve containers had been in the terminal all along, but had been issued separate bills of lading from the first three and placed in a somewhat separate area. We had succeeded in arresting all fifteen containers.

After our having engaged in twelve days of intensive e-mail and telephone communication together, Dan showed up at Dalian’s airport. His high praise of our work conveyed his satisfaction of our efficient job. Dalian and Qingdao’s picturesque scenery and modern city construction impressed Dan deeply and changed his previous imagination regarding this part of China. He loved the food and our culture and talked about returning some day with his family on holiday.

Hard success to acquire guaranty and lift the arrest

Now that we had the pollock under arrest, we would need to maintain it in its frozen condition at the terminal. Pollock is a valuable fish and the costs and risks during the arrest period were high. The sooner we could resolve the dispute, the sooner the fish would be on its way, and the better it would be for all parties.

The day after we arrested the cargo, we received a letter from Alimex’s lawyers in Denmark, claiming Alimex owned the arrested cargo, not Bolshoretskoe, and threatening Daxin with criminal action. Alimex’s lawyers copied this letter to the court and to Daxin. Though confident that it was in the right, this threat of criminal action did not sit well with Daxin. We replied to Alimex’s lawyers by lecturing them on Chinese and international law and by declaring that Alimex would suffer even more losses if it insisted on pursuing litigation in China instead of cooperation. The reaction from Alimex’s lawyers was overwhelming. They wrote me a letter filled with furious and derogatory words and stated they would never communicate directly with us again. The case had fallen into deadlock.

Despite the initially tough attitude of Alimex’s lawyers, we knew we could not abandon our efforts to achieve a settlement, particularly since we knew settlement made sense for all parties. We proposed a three way agreement between Daxin, Alimex and Bolshoretskoe, whereby Alimex would keep its purchase price funds and not pay any party for the fish until the dispute between Daxin and Bolshoretskoe had been resolved through arbitration in Canada. Alimex would then pay the winner of the arbitration up to the purchase price of the fish. Alimex would also agree not to pursue any claims against Daxin for wrongful arrest. Upon the signing of this agreement, Daxin would release its arrest of the cargo. Daxin secured oral agreements from both Bolshoretskoe and Alimex to go forward with such an agreement.

For the fish to go out on the next liner to Europe, Dan and I had to work overtime in drafting the appropriate agreements. This time, the multitude of languages and time zones (China, Russia, Singapore, Seattle, and Denmark) worked to slow us down, and by the time Bolshoretskoe received its Russian language copy of the agreement, only a few hours remained before the pollock needed to be loaded on the liner to Europe. But, at the last minute, Bolshoretskoe changed its mind and decided it would not sign. All our hard work had been for naught. We were all exhausted.

The next liner to Europe was leaving in six days. During the weekend, we stopped talking with opposing parties and communicated with only Dan and Daxin. We went back over the case history and analyzed each party’s positions and risks. We concluded that Bolshoretskoe was Daxin’s real adversary. It was Bolshoretskoe that owed the money and it was Bolshoretskoe that had avoided payment for so long. It also was Bolshoretskoe that had backed out of its oral agreement. There had been no prior conflicts between Daxin and Alimex. Though Alimex was listed as the consignee of the pollock on the Bill of lading, it had yet to actually pay for the fish. Above all else, Alimex wanted the pollock sent to Europe so it could fulfill its commitments with its European buyers.

If we could persuade Alimex to provide a deposit or the purchase price to the Qingdao Maritime Court, we would lift our cargo arrest. If, on the other hand, Alimex insisted on paying the purchase price directly to Bolshoretskoe, the arrest would remain in place, and Alimex would be unable to fulfill its supply contracts with its European buyers. Daxin would be left fighting a two front war against Alimex and Bolshoretskoe in the Chinese courts.

We told Alimex that if it did not immediately settle, we would move the court to require Alimex pay the Pollock purchase price to the court and seeking the immediate sale of the pollock at auction. Within hours, we received contact from a Chinese lawyer retained by Alimex, who would, he informed us, be going to court to have our “illegal” arrest thrown out. The court ignored him.

The next liner for Europe was coming to Qingdao the next day and it finally began dawning on Alimex that if it wanted to get the pollock to Europe and to its customers, it would need to settle with us. Intensive settlement talks began anew and another oral agreement was reached. Alimex would guarantee to pay up to the amount of the pollock purchase price to whomever prevailed between Daxin and Bolshoretskoe. Alimex also agreed not to pursue any claims against Daxin arising from Daxin’s allegedly wrongful arrest of the cargo. A settlement was drafted and signed and the parties worked diligently to get the arrest lifted in time for the product to make it on that day’s liner to Europe.

Daxin had a Guarantee Agreement from an established and well funded Danish company and we had achieved a smashing victory on this exciting arrest of cross-border transshipping cargo.

Somewhat smooth sailing in recovering Daxin’s award.

We then filed Daxin’s case against Bolshoretskoe in the Qingdao Maritime Court. Bolshoretskoe consistently failed to attend any court hearings and we eventually secured a default judgment against it.

Alimex then paid Daxin all but US$15,000 of the amount it had guaranteed, but claimed entitlement to withhold US$15,000 for itself to help pay for the costs it had incurred in China defending against Daxin’s arrest. One e-mail from Dan threatening arbitration in London (pursuant to the Guarantee Agreement) for the $15,000, plus all fees and costs, convinced Alimex it had no case on this either. Alimex paid the remaining US$15,000 to Daxin and the case was over.

After six months, close cooperation and flexibility by lawyers on both sides of the Pacific had given us full and total victory.

Epilogue

A few months after I closed the case, Dan sent me an e-mail telling me he had heard from one of his Danish clients that Alimex’s Danish lawyers had told them of our great job on this case. Dan and I have since worked on a couple additional cases together, but it will be this first one that I will always remember. In thinking of this case, I know I will never forget the sleepless nights I spent communicating with lawyers and parties in four times zones. But I also know that the pride I feel from knowing how much we achieved, despite having to work through the laws of so many countries under such tight deadlines, is what will always stand out. Our wisdom, our legal knowledge and our strenuous diligence had garnered us high praise not only from our foreign colleague and from our client, but also admiration from the opposing party. I share this honor with Harris & Moure, with our Fada Law Firm and with Qingdao’s Wincon Law Firm, and with our Chinese Lawyers.

Zhao Xiaomei (Meggie) is a senior partner at the Fada law firm in Dalian, China, where she focuses on international and maritime law.

Stop Collection Agency Harassment

Owing a debt does not automatically subject you to harrassing, threatening and other inappropriate collection agency behavior. Some collection agencies go too far with what I call “renegade collectors” they will repeatedly call you at your home and/or business, threaten to send a marshall over to serve you with lawsuit papers or send intimidating letters, appearing to come from an attorney or law firm, stating that you will lose your car, wages and other property if you do not pay your debt! It does not matter that you failed to pay a debt or that you can not afford to pay your debt at this time no one should intimidate, threaten or harrass you or coerce you to give out personal or financial information. Inappropriate collection procedures can intimidate you into paying for costs that may not even be your responsibility.You are protected by the law from innapropriate collection procedures.

The Federal Fair Debt Collection Practices Act, the New York City Consumer Protection Law Regulation 10 and New York State Statute, General Business Law, Article 29-H, (the “State Statute”) all prohibit threatening, harrassing and intimidating collection procedures. For instance, the State Statute prohibits a collection agent from (a) threatening to communicate with your employer prior to that agent obtaining a judgement against you, (b) communicating with your family or household at such frequency or at such unusual hours as can reasonably be expected to be abusive or harrassing, or (c) simulating any legal or judicial process or appearing to be authorized, issued or approved by the government or an attorney to collect a debt. Also, if the collection agent sends you a letter demanding you pay without the reuired notice under the federal law regarding your confidentiality, your rights to dispute the debt an dgiving you the appropriate 30 days to respond, then the debt collector is automatically liable to you for any damages plus three times the amount of your damages. Each violation of the State Statute is a seperate misdemeanor offense. You can file charges with the State Attorney General or your County District Attorney and also request a restraining action against the collection company to stop it from continuing abuse and harrassment.

If you feel abused or harrassed by a collection agency, call that agency and get the name and address of the owner/president. Send your written complaint, by certified mail, return receipt, to the owner/president and include in your letter that you “believe that agency is violating the Federal Fair Debt Collection Practices Act and other state and local laws and that you will (a) file complaints with the Attorney General or the District Attorney’s office (subjecting the collection company to misdemeanor charges) and (b) request a restraining action against the collection agency.” If the collection company continues to abuse and harrass you, then go ahead and file your charges and complaints .

This article is certainly not all inclusive and is intended only as a brief explanation of the legal issue presented. Not all cases are alike and it is strongly recommended that you consult an attorney if you have any questions with respect to any legal matters.

Any questions and/or comments with respect to this topic or any other topic, contact:

http://www.appellate-brief.com

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762

Susan Chana Lask, Esq. c 2004

Susan Chana Lask is named in the media as New York’s “high powered attorney”. She practices sucessfully all civil, criminal & appeals cases in State & Federal courts nationwide. http://www.appellate-brief.com
scl@appellate-brief.com

Debt Collection Laws

In your small business debt collection laws will eventually become important, as your debt grows and some clients do not pay. To collect small business debts legally, you must send a written notice that collections have begun, within five days of first contacting the debtor for collections. The letter must include dispute instructions.

Small Business Debt Collection Laws Forbidden Practices…

  • Collect any amount beyond the actual debt, unless you really can do so legally.
  • Continue collections on a debt if the debtor has disputed the debt, unless you provide the debtor with written proof.
  • Continue contacting the debtor if within 30 days of first contact, the debtor disputes the debt.
  • Credit a payment the debtor has made to a non-disputed debt to a debt the debtor has disputed.
  • Deposit a post-dated check before the post-date.

Small Business Debt Collections Laws: What You Can’t Say

  • Give a false name.
  • You are an attorney or government representative, if you are not.
  • You have an attorney working for you or that you are going to assign the case to an attorney, if you really do not.
  • The debtor has committed a crime, unless you are 100% sure they have.
  • You work for a credit bureau, if you really do not.
  • The debt is more or less money than it actually is.
  • You are sending or have sent legal forms when you really did not.
  • You are sending or have sent papers that are not legal forms, if they really are legal forms.
  • The debtor will be arrested–no one is arrested for nonpayment of debts anymore.
  • You will seize, garnish, attach, or sell the debtor’s property or wages, if you do not really intend to or cannot legally do so (and unless the debt is secured with collateral, you probably cannot).
  • You will sue or take other legal action, if you do not really intend to, or are not legally able to do so.

Small Business Debt Collection Laws Forbidden Third-Party Disclosures

Never:

  1. Give any credit-related information that is not 100% accurate.
  2. Tell anyone other than the debtor that you are collecting a debt.
  3. Telephone any number other than debtor’s more than once.

Small Business Debt Collection Phone Calls

Never:

  • Call after 9 pm or before 8 am.
  • Forget to give your name and your company’s name.
  • Call repeatedly or in a way intended to annoy.
  • Make a collect call.
  • Make any threats.
  • Use profane or obscene language.
  • Leave a message that reveals this is a debt collection.

Small Business Debt Collection Mailing

Never send:

  • Postcards.
  • Envelopes or mailings with any reference to debt collection on the exterior.
  • Anything that looks like an official, legal, or government document, if it is not.

These simple small business debt collection laws guidelines should help stay with the collection laws.

Steve Austin

Free debt collection laws information at http://www.debt-collection-laws.com/