eltman, eltman & cooper - expired debt

[mebe]

What is the name of your state? new york

my client's checking account which contains solely social security direct deposit monies was
restrained by lawyers eltman, eltman & cooper on behalf of erin servicesco. as the result of a default judgment entered against her. my client believes the debt is stale or "time-barred", that is, more than 6 years have past since the last payment was made, and before the lawsuit against her was started. The original debt was with Citibank credit card, charged off and then sold to a recovery company.
has anyone in metro New York City area had a similar experience with eltman, eltman & cooper and erin services co.

[debtcollector`]

And you are whom exactly?

DC

[Ladynred]

Your client needs to get a copy of the judgment case file from the court where the judgment was entered against her. Look at the proof of service affidavit and see when, where, how and to who Eltman claims they served the summons. Your client may be able to get that judgment vacated if defective service can be proven.

The SOL is moot at this point since there is already a judgment. What your client must do NOW is appeal that bank levy as the social security funds are 100% EXEMPT from seizure.

[mebe]

to debtcollector and ladynred
thank you both for your thougts.
ladynred-
the sol is not moot because if the lawyers knew the debt was 'time-barred' at the time they commenced the suit, they violated FDCA. this area can be litigated in a new action under both FCDA as well as possibly General Business Law 349 (deceptive trade practice) since it was not an issue which was decided by the default judgment.

debtcollector-
i'm just a humble fellow tired of seeing elderly and not knowledgeable people being taken advantage of by certain "professionals" who then boast of their "achievements" on their website.

[debtcollector`]

Originally Posted by mebe

debtcollector-
i'm just a humble fellow tired of seeing elderly and not knowledgeable people being taken advantage of by certain "professionals" who then boast of their "achievements" on their website.

Then you should read up on the penalties for unlicensed practice of law in your state.

DC

[Ladynred]

the sol is not moot because if the lawyers knew the debt was 'time-barred' at the time they commenced the suit, they violated FDCA.

The SOL does NOT prevent lawsuits, and it is NOT illegal to sue on a time-barred debt in your state - or most others for that matter. The expired SOL is an affirmative defense to be used in answer to a lawsuit to (hopefully) get a case thrown out - that's it.

While I've seen others try to say that it's a violation of the FDCPA because it supposedly misrepresents the legal status of the debt, I don't see how that can work because the debt IS still legally collectible if past the SOL in all but 3 states (CA, WI & MS) where it IS illegal to sue on a time-barred debt. The problem with affirmative defenses is that you use it - or you lose it.

At this point in time, the SOL is moot as long as the existing judgment remains. Get it vacated and then you have a chance.

I'm certainly on your side where unscrupulous collectors are concerned. There are scumsucking dogs who deliberately serve summonses to ancient or bogus addresses ON PURPOSE and in NY, a nail and mail state, especially NYC, it appears to be rampant. Fight them, but you're going to have to do it one step at a time within the laws of the state. The next step is challenging the judgment, get it vacated, then counter-sue if you must.

[You Are Guilty]

Getting the judgment vacated for improper service (assuming service was bad), in itself a difficult task for a layperson, is further compounded by the timing - how long ago was the default entered.

In the meantime, check the NYC's DCA website to see if this place is licensed to collect debt.

[BL]

Get the levy lifted ..the person needs to send prove to the collection agent(s) and demand they lift it , also the client should go to the bank with these laws , the person needs to be prepared to pay some bank fees associated with the Levey , but it never hurts to request the fees to be waived .

Can Social Security benefits be garnished to pay a debt? Answer
Section 207 of the Social Security Act (42 U.S.C. 407) protects Social Security benefits from assignment, levy, or garnishment. However, the law provides five exceptions:
Section 459 of the Act (42 U.S.C. 659) allows Social Security benefits to be garnished to enforce child support and/or alimony obligations;
Section 6334 (c) of the Internal Revenue Code (26 U.S.C. 6334 (c)) allows benefits to be garnished to collect unpaid Federal taxes;
Section 3402 (P) of the Internal Revenue Code allows beneficiaries to elect to have a percentage of their benefits withheld and paid to the Internal Revenue Service to satisfy their Federal income tax liability for the current year;
The Debt Collection Act of 1996 (Public Law 104-134) allows benefits to be withheld and paid to another Federal agency to pay a non-tax debt the beneficiary owes to that agency: and
The Tax Payer Relief Act of 1997 (Public Law 105-34) authorizes the Internal Revenue Service to collect overdue federal tax debts of beneficiaries by levying up to 15 percent of each monthly payment until the debt is paid.
The Social Security Administration's responsibility for protecting benefits against legal process and assignment usually ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 of the Act only as long as they are identifiable as Social Security benefits. This applies to money in a bank account where the only payments into the account are from direct deposit of Social Security benefits.
NOTE: Supplemental Security Income payments cannot be levied or garnished.