is spouse liable for debt?

[daisy1313]

What is the name of your state? California

We recently received a collections letter from a law firm stating my father has a cc debt with citibank. My father has not been living with us since july of 2001 due to him being encarcerated, then he was deported in march of 2002. According to the law firm, the account was opened in january 2002. which i beleive is fraud because my father was in prison at that time. Now, since my father is out of the country, they are threatening to go after my mother's assets, sue her, and make her liable for this debt. Can they do that?

[Ladynred]

Unfortunately they can, CA is a community property state. That means you share not only marital assets, but all DEBTS incurred during the marriage too.
However, unless you're mother has a huge house with a LOT of equity, its unlikely they can take anything from her at all. If the account was fraud, make the validate it and produce an agreement with your father's signature on it.

[daisy1313]

Now, can they do this even though my mother was not aware of the debt? Isn't there like an innocent spouse rule or something?

[Ladynred]

I wish there were such a thing It MIGHT work out that way if the account was truly fraudulent. If your father was in the slammer when this account was opened and/or used, he sure didn't do it, so that leaves a relative or a thief. If that's the case, I'd dispute their claims and pursue the fraud. File an identity theft report with the credit bureaus and with the police (you'll need the police report).

[daisy1313]

These "collectors" (people from the law firm) keep calling my mothers home and they left her a message saying she has until Nov. 12th to pay the debt or they will take legal action against her. Now my question is...don't they have to send her something in writing first (like a 30 day notice or something), before they "take legal action"?, she has never received anything in her name from them, and they've never actually talked to her. This all started because I called them and I told them that my father was out of the country, so that's when they started the "threats" of making my mother liable for the debt...any further advice for this?

[Ladynred]

By law, they are required to send written communication within 5 days of their 1st contact, and they must give her 30 days to dispute. Considering the kinds of threats and 'deadlines' you're talking about, I'd say this is a run of the mill collection agency making BS threats.

I would write them a debt validation letter, make them prove the account and also use the verbage that says the whole thing is fraudulent. Since you do suspect it could be fraud, I would use it. You should also do as I suggested before and find out all the details that you can concerning this account.

You can find information on this at [url]www.creditinfocenter.com[/url] along with sample letters to use.

[stevek3]

Originally Posted by daisy1313

These "collectors" (people from the law firm) keep calling my mothers home and they left her a message saying she has until Nov. 12th to pay the debt or they will take legal action against her. Now my question is...don't they have to send her something in writing first (like a 30 day notice or something), before they "take legal action"?, she has never received anything in her name from them, and they've never actually talked to her. This all started because I called them and I told them that my father was out of the country, so that's when they started the "threats" of making my mother liable for the debt...any further advice for this?

Keep the voice mail, don't erase it. Did you erase it? Hope not. If the firm is like 99.99999% of third-party collectors, they didn't advise your mother in that initial communication, which you say was oral, that they were attempting to collect a debt and that any information obtained will be used for that purpose. There's your leverage. Let them know this beforehand, and I can assure you your mother won't be sued.

Of course, you may be making the mistake of believing your mother. I don't doubt she honestly believes what she told you, but I suspect she indeed received something in writing from the law firm. Even so, in oral communications, they do, at the very least, have to advise your mother that they are a debt collector. So, your mother still has something effective to use to keep away the wolves. But you need to let them know this before any suit is filed. Otherwise, it's going to get a lot more complicated for her.

[Ladynred]

There's your leverage. Let them know this beforehand, and I can assure you your mother won't be sued.

And just how do you come by THAT ??? No way that would stand up in court and its pretty weak leverage. Letting them know beforehand, with most debt collectors (lawyers or not) will get you nowhere, they'll laugh at you, they all think they're above the law and it doesn't apply to them !!

[stevek3]

Originally Posted by Ladynred

And just how do you come by THAT ??? No way that would stand up in court and its pretty weak leverage. Letting them know beforehand, with most debt collectors (lawyers or not) will get you nowhere, they'll laugh at you, they all think they're above the law and it doesn't apply to them !!

That's why I always suggest getting a lawyer involved for this very purpose. Trust me, they get a strong letter from a lawyer advising them there will be a counterclaim and/or a third-party complaint if suit is filed against the client, then suit won't be filed. They just don't need the headaches. It's bad enough when debtors file answers. It's a pain in the ass. Then you gotta screw around with motions, hearings, and everything else involved in litigation. Collection law firms thrive on default judgments. Anything more is a leech on available resources. A lawyer on your side can sometimes be very beneficial, even if it's just for the envelopes and stationary.

[daisy1313]

Originally Posted by Ladynred

Unfortunately they can, CA is a community property state. That means you share not only marital assets, but all DEBTS incurred during the marriage too.
However, unless you're mother has a huge house with a LOT of equity, its unlikely they can take anything from her at all. If the account was fraud, make the validate it and produce an agreement with your father's signature on it.

Now, if I have a debt that was incurred before my marriage, can they make my husband liable. This debt has remained separate. Need an reply asap!!

[Ladynred]

No. If the debt was incurred BEFORE the marriage it is NOT a 'community' debt and only YOU are liable for it.

[daisy1313]

What do or can I do if these collectors are threatening to garnish my husbands wages (since I am not working) and to contact his employer, after I've already told them not to, now this is concerning the state of california, a community property state.

[Ladynred]

Unless they've already sued and won a judgment, they can't do SQUAT to anyone ! No garnishment is allowed w/o a judgment, if they are telling you this and you've not been sued then they are breaking the law !

If this is a pre-marital debt they can't go after your DH, its NOT community debt, its considered separate. I would hope you have proof of that too.

When is the last time you paid the original creditor on this debt anyway ??

[daisy1313]

The last time I paid was in november of 2002, I got married in may 2003. They are threatening to sue my husband, I did tell them that this was a debt that was aquired before i got married and that he had nothing to do with it, but they said that in a community property state (CA) you marry into the debts also, which i think is bs and maybe they were just trying to scare and pressure my into paying. They also told me that if i terminated the call they were going to have no other option but to do an investigation on my husbands income and so forth. Well i had no other other option but to hang up on them because we just just arguing, so now...if they do happen to contact my husbands employer, can i sue them???

[Ladynred]

They're full of crap and just trying to turn the screws and scare you into paying them. You do NOT 'marry into debts', that's bull, so ignore their nonsense. Their BS about investigations and the like is also bull, a tactic meant to scare you so you'll let go of that secret stash of millions they think you're hoarding If there is no judgment, there can be no garnishment.

If they contact your husband's employer, they will be in violation of the law as they cannot go after your husband's income or assets for YOUR SEPARATE debt. Since they cannot legally take any action, threatening to do so is a violation of the Fair Debt Collections Practices Act (FDCPA). If you haven't read the FDCPA, you need to. You can find it at [url]www.ftc.gov[/url] under consumer credit.

Could you sue them ? Probably, but it would be better to document their violations as they rack up more and more of them.. so keep a log of all calls and what is said !