Need legal advice immediately!!!!

[AutumnMDove]

What is the name of your state (only U.S. law)? California

My name is Corrina. My Mom got a phone call today from a debt collector, telling her that if she doesn't pay this debt, that she will be prosecuted and sent to jail. He said that they sent her several notices from seven different agencies, which we never got any notices from at all! Can she go to jail if she isn't able to pay this debt? It's from a pay day loan she took back in 2004, because she had to quit her job to take care of her dying Father. She didn't get on her disability benefits until years later and we were never notified in any way shape or form until today about this collection. What can she do legally? Can someone please help us with some advice?

 

[quincy]

What is the name of your state (only U.S. law)? California

My name is Corrina. My Mom got a phone call today from a debt collector, telling her that if she doesn't pay this debt, that she will be prosecuted and sent to jail. He said that they sent her several notices from seven different agencies, which we never got any notices from at all! Can she go to jail if she isn't able to pay this debt? It's from a pay day loan she took back in 2004, because she had to quit her job to take care of her dying Father. She didn't get on her disability benefits until years later and we were never notified in any way shape or form until today about this collection. What can she do legally? Can someone please help us with some advice?

First, reassure your mom that she is not going to jail. That is just not going to happen.

Second, stand by for those who know more about debt collection laws than I do.

 

[single317dad]

- What was the date of first delinquency on the loan?

- Who is the collector calling your mother? (the original creditor, or, more likely, a third party who has purchased the debt)

- It is possible to end up in jail indirectly over a debt if you ignore court orders to appear long enough. That's not an issue to worry about at this point, though.

 

[LdiJ]

What is the name of your state (only U.S. law)? California

My name is Corrina. My Mom got a phone call today from a debt collector, telling her that if she doesn't pay this debt, that she will be prosecuted and sent to jail. He said that they sent her several notices from seven different agencies, which we never got any notices from at all! Can she go to jail if she isn't able to pay this debt? It's from a pay day loan she took back in 2004, because she had to quit her job to take care of her dying Father. She didn't get on her disability benefits until years later and we were never notified in any way shape or form until today about this collection. What can she do legally? Can someone please help us with some advice?

Your mom should ignore this debt collector completely. He is breaking the law by making those kinds of threats to her. She cannot be prosecuted and sent to jail. Even IF the payday loan could be considered to be her writing a bad check, the statute of limitations is long passed. The debt collector was trying to scare your mother into paying a debt that is uncollectable at this point.

 

[single317dad]

Your mom should ignore this debt collector completely. He is breaking the law by making those kinds of threats to her. She cannot be prosecuted and sent to jail. Even IF the payday loan could be considered to be her writing a bad check, the statute of limitations is long passed. The debt collector was trying to scare your mother into paying a debt that is uncollectable at this point.

We don't have enough information to make those statements.

 

[LdiJ]

We don't have enough information to make those statements.

Yes we do...

1) "If she doesn't pay this debt she will be prosecuted and sent to jail". As you stated, there is a slight chance that there could be a bench warrant for failure to appear, however that is highly unlikely in the case of a creditor suing for a judgment.

2) Someone could be prosecuted for writing a bad check. However, since it happened in 2004, the statute of limitations is long passed.

3) She is on disability therefore she is judgment proof. Disability cannot be garnished for consumer debt. A lien could be placed on her bank account but would have to be released once its prove that the contents of the account are from disability payments.

So, there is more than enough information to state that the debt is uncollectable. It is a well known fact that there are a lot of unscrupulous debt collectors out there that are using scare tactics, predominantly threat of jail, to attempt to get people to pay debts that would normally be uncollectable.

Her mom should ignore this debt collector.

 

[single317dad]

Yes we do...

1) "If she doesn't pay this debt she will be prosecuted and sent to jail". As you stated, there is a slight chance that there could be a bench warrant for failure to appear, however that is highly unlikely in the case of a creditor suing for a judgment.

2) Someone could be prosecuted for writing a bad check. However, since it happened in 2004, the statute of limitations is long passed.

3) She is on disability therefore she is judgment proof. Disability cannot be garnished for consumer debt. A lien could be placed on her bank account but would have to be released once its prove that the contents of the account are from disability payments.

So, there is more than enough information to state that the debt is uncollectable. It is a well known fact that there are a lot of unscrupulous debt collectors out there that are using scare tactics, predominantly threat of jail, to attempt to get people to pay debts that would normally be uncollectable.

Her mom should ignore this debt collector.

None of this means the actual debt is definitely past SoL (though with CA's short statutes, I'll admit it's likely so). If the debt is within SoL, creditor files a lawsuit, and mom ends up with a bench warrant, then it is still possible to be arrested for this debt. That's why I asked the question I asked.

I'll agree that the debt is likely uncollectable, but I won't make any blanket statements without all the information.

Most likely, the creditor is blowing smoke (worse than that, they're just being complete a-holes), and there may be recourse for mom under FDCPA, which is why I continued asking questions.

 

[Zigner]

Was the loan taken in California? Does your mom still live in the same state that the loan was taken?

 

[TigerD]

Most likely, the creditor is blowing smoke (worse than that, they're just being complete a-holes), and there may be recourse for mom under FDCPA, which is why I continued asking questions.

1. It's California. She will have more recourse under the Rosenthal Act than the FDCPA.
2. While there are limited circumstances in which she could be prosecuted, the information at hand does not lend itself to reaching for the books that contain those conclusions.
3. LdiJ's comments are almost spot on - although I take some issue with "It is a well known fact that there are a lot of unscrupulous debt collectors out there."

TD

 

[single317dad]

1. It's California. She will have more recourse under the Rosenthal Act than the FDCPA.
2. While there are limited circumstances in which she could be prosecuted, the information at hand does not lend itself to reaching for the books that contain those conclusions.
3. LdiJ's comments are almost spot on - although I take some issue with "It is a well known fact that there are a lot of unscrupulous debt collectors out there."

TD

I stand by my assesment; we have no idea if OP's mom made any kind of payment on this debt over the years, if she made any new agreement or arrangement to pay, or even if there's already a judgment somewhere. Until we do, all of this is conjecture.

 

[LdiJ]

None of this means the actual debt is definitely past SoL (though with CA's short statutes, I'll admit it's likely so). If the debt is within SoL, creditor files a lawsuit, and mom ends up with a bench warrant, then it is still possible to be arrested for this debt. That's why I asked the question I asked.

I'll agree that the debt is likely uncollectable, but I won't make any blanket statements without all the information.

Most likely, the creditor is blowing smoke (worse than that, they're just being complete a-holes), and there may be recourse for mom under FDCPA, which is why I continued asking questions.

Lets be clear on one thing though. The only way that mom would have a bench warrant is if she was ordered to appear in court and did not do so. Simply allowing a debt collector to win by default does not result in a bench warrant.

I am also not talking about a debt being past the statute of limitations. I am talking about the potential crime of writing a bad check. The only way she could be arrested over the debt would be due to something like that. Being arrested on a bench warrant is NOT being arrested for the debt, its being arrested for contempt of court for not showing up for court.

It does not matter at this point whether the debt itself is past the statute of limitations, because she is uncollectable anyway. Her only income is disability.

 

[Zigner]

I wonder if the OP is ever going to answer the questions posed...

I mean, there was such urgency in the original post.

 

[CdwJava]

What is the name of your state (only U.S. law)? California

My name is Corrina. My Mom got a phone call today from a debt collector, telling her that if she doesn't pay this debt, that she will be prosecuted and sent to jail.

It's a scare tactic and is a common occurrence here. I field calls on this sort of thing with some frequency.

He said that they sent her several notices from seven different agencies, which we never got any notices from at all! Can she go to jail if she isn't able to pay this debt? It's from a pay day loan she took back in 2004, because she had to quit her job to take care of her dying Father. She didn't get on her disability benefits until years later and we were never notified in any way shape or form until today about this collection. What can she do legally? Can someone please help us with some advice?

No, she's not going to jail for failing to pay on an account in arrears. Chances are these people are from far out of state.

Here is some info from the CA AG:

http://oag.ca.gov/consumers/general/collection_agencies10