The lawyer told me that he works for a law firm in Texas. He has offices in California. (I live in Southern California.) I owe Sears (among other credit cards) about 2K. I think I made a payment to them about 7 months ago.
I am unemployed at this time, I have no savings, own no home, own no car and I am not collecting any unemployment now. For the past 6 months (March-July) I was collecting very little unemployment, yet I didn't have enough coming in to cover that Sears bill.
I asked the lawyer if I had to go to court. He did not give me a straight answer of Yes or No. I don't understand why he couldn't give me a direct short and simple answer. He told me that he would send me information in the mail about the law firm he works for. I have not yet recieved any court summons in the mail. I need clear cut answers. My mind works that way.
Should I try for bankrupcy? Is there a chance that my case may win? (I have 7-8K in credit card debt) I earned 7K in 2006 while working
2007-09-01 09:40:43 · 2 answers · asked by Beth 4 in Business & Finance ➔ Credit
He didn't give you a straight answer because he's not your lawyer. His job is to protect the client's interest, not yours. That would also be a breech of ethics and possibly some laws.
That said Sears didn't sell your account. Sears as a retailer has no link to that account other than their name and the allowed use of the card in their store. The Sears Credit division was sold a few years back to Citibank (now Citi). They're who sent your account to collections.
Did you contact the credit customer service department and explain your situation? You should have done this the first time you knew you couldn't pay the bill. By doing that, you could have avoided a lot of problems and possibly worked something out. The minimum payments on a card with a $2000 balance shouldn't be more than $100 a month.
I hate to be the bearer of bad news but you're not in a good position right now. Most likely they'll attempt to collect from you for a few months, before they seek a judgement from a court against you. From what you've said, you have no justifiable reason for your absence of payment (there is almost no reason allowed) and they'll pass judgement against you. Then they'll legally be allowed to rape any bank accounts you have at their whim to satisfy the debt, or garnish your wages.
They're going to have a major problem with your earnings for 2006. Then they'll ask why you didn't go to Taco Bell or such and get hired on for $8.50/hr for 40hrs a week (that's $17340/yr if working 51weeks), or some other similar job.
The bottom line is you need to find a job fast, even if it is flipping burgers while you try to find something better, and you need to take the bull by the horns and start paying them something. If you can do the minimums, that may fix the issues (especially if you call them and explain your situation.) At the minimum call them, explain the situation, and tell them a number you can send per month until you can get your employment situation settled. They will try to work with you.
Bankruptcy is not a good idea, nor does it necessarily wipe out what you owe your creditors. They changed the laws a year or two back and now its much more complicated and harder to get one approved, not to mention much more expensive. The lawyer handling it will charge you close to what it would cost to pay those bills off, then you're screwed (credit-wise) for at least 10 years after the date of closure (which is up to 2 years after you file).
2007-09-01 16:54:28 · answer #1 · answered by mdnky 2 · 1⤊ 0⤋
As for filing bankruptcy, you might want to discuss that option with a bankruptcy lawyer.
While I know that amount you mentioned is alot of money to you (and many others, myself included) in bankruptcy terms it is not that much.
You might also speak to a "consumer credit" lawyer about the possible law suit. Take all of the info you have, including your credit reports. Many lawyers will give a free first consult so you can see where you stand. Be sure an ask about that if you call for an appointment.
If you have plenty of violations against them, the lawyer "may" take your case on a contingency basis. Where if you win, the lawyer would ask the court that the other side pay all fees including his/her fees. Though if you lose you would be responsible for all fees.
Just my opinion, if I knew that I was going to end up with a judgment, I'd prefer bankruptcy over that (but like I said - that is just my opinion)
As for the lawyer not saying yes or no to your question, he is probably covering his butt so if he does sue, you would not be able to file a counterclaim on him for using the threat of filing to get you to pay.
You did not mention when you defaulted on the account.
If you received the card because Sears contacted "you" claiming you would be approved (pre-approval letter etc) and you applied and was approved - the collecting SOL would be 2 years from your last charge or payment on the account "before" it was charged off.
If you applied for the card without Sears sending you any pre-approval letters, phone calls, etc., then the collecting SOL would be 4 years from your last charge or payment on the account "before" it was charged off.
You mentioned that you made some payments to them about 7 months ago - if that was "after" they had charged off the account those payments would "not" reset the collecting SOL.
If it has been at least 2 years or less since your last payment or charge on the account before it was charged off, then you would still be within the collecting SOL and would not be able to use a SOL defense.
The lawyer should have sent you the information concerning that account within 5 days of that phone call.
If you are still within 30 days from that call and you send a debt validation letter, the lawyer (and collection agency) must cease all collections until proper validation is provided.
If you know that you are past the collecting SOL (or close to it) you might send them a debt validation letter before the 30 days are up from that phone call.
If you are still well within the collecting SOL, you would have to decide if you want to send the letter or not.
There are pro's and con's in sending a validation request while still within SOL.
Such as - if they don't have the info and cannot get it from Sears, they must cease collections, which includes filing suit, until they come up with the info and send it to you.
If it has only been a few months since Sears charged off the account, they may have no problems getting the info. They would have then fulfilled their obligation and could start the suit if they plan on doing that - plus they would have the extra info that they may not have had if you did not request validation.
But, you not only have the FTC's FDCPA in your corner, your state also has their own version of the FDCPA which is very strict.
The FTC's version would protect you from any violation the collection lawyer and collector commits
The state version would protect you from any violation the collection lawyer, the collector AND the original creditor commits.
If their tradelines on your credit reports are reporting inaccurately, and you file disputes right after they receive your debt validation letter, it would be a violation for them to verify the tradelines until they validate with you.
If they validate with you and simply verify the tradelines without removing/changing the inaccurate info, that would be a violation.
Either or both of those could be actionable by you in either filing against them or using them for counterclaims should they file against you.
Also, any violations they commit in their correspondence with you would be actionable. Though any that is made on the phone would have to be proven or it would be considered hearsay.
Much of it boils down to where you are at concerning the collecting SOL and if they have violated your rights in any way.
Again, you might want to speak to a bankruptcy lawyer and a consumer credit lawyer before you decide the route you want to take.
2007-09-02 00:25:20 · answer #2 · answered by echo 7 · 1⤊ 0⤋