did I tell her right?

[longsally111]

What is the name of your state? South carolina

I need to make sure I gave someone correct advice. My friend went through a divorce, long to short of it, she defaulted on a CC for about 3,000.00 in 2005. Anyhow, she started to get collection calls and this woman named kim has told her that they are going to garnish her wages as soon as they can verify her employment. She then called me all upset. I told her that 1. they cannot garnish without a judgement and she has not been taken to court 2. They do not wage garnish in the state of South Carolina at this time and
3, this woman, from what I could tell, had broken the FDCPA law by making a false threat to her.

I advised her to call this woman back, tell her that she was being taped, tell her that she was aware of above 1 and 2 and that unless they are going to take legal action, not to call her again and follow that up with a C&sS letter that states the same. She is aware of the SOL and that they can sue her but she is not worried about it, she survives on child support and food stamps, both which are exempt to garnishment and a small paycheck from a part-time job. You cannot get blood from a turnip. Did I tell her right?

 

[ami in Cali]

just from my limited experience...

FWIW:
If I was her, I would find out if there was a judgement filed against her w/ the local court AND IF there IS... get the proof of service. Respond & fight if she was never served. Motion to Set Aside, then try & Vacate.

Most DC do lie & speak harsh... Keep very good phone records: Who/names (& supervisor)? What discussed & said? Where? Time called & how long.

Personally I would not call them, I'd limit it to written comm.

She should DV them IF she has yet to respond to any of their letters to collect (if within the 30days of notice to collect).

If she owes on this debt why doesn't she try & deal/neg. w/ the OC if possible... payment plan or claim CH7 bankruptcy?... there is legal help out there, even self-help rooms @ most court houses that can help you do things pro se.

bol

 

[longsally111]

more info

she and her husband lost EVERYTHING!!!! Their house was bank repo'd and sold at auction and she ended up owing nothing on it though so she got lucky there. Her husband stopped the payments on her car and they repo'd that too. She bought a good used small vehicle on her sisters cc and has been making regular payments for the last 1 1/2 years. She has NOTHING for them to take. She is below the poverty line. Capital one was the original creditor and they charged it off and sold it to a bottom feeding collection agency who has already inflated the bill from 3000 to over 8000.00. They keep calling her up and telling her to charge it!!!! She has no CC's and barely survives.

I did tell her that they might have a judgement that she does not know about, however, I do not think that is the case here. Even if they did, her credit is already ruined and as I stated before, they do not wage garnish in this state!!!!

BTW, what does DV mean? You said she should DV them. huh?

 

[ami in Cali]

longsally :

There are free legal services that can/will help her. Call the local court house or even law schools, they can direct you. She may want to even have someone help her file CH7 and name all past creditors/debts in it (so nothing can spring up in the future)...
once & for all get a clean start.

I know in each state there's an exemption for property, including tools for work, clothes and inexpensive transportaiton, even some jewelry (here in CA.). Sounds like she will be alright... it's just the harassment that needs to stop for her & the threats.

fwiw: I changed our phone number which helped alot... then we could deal w/ the CA's trough the mail... no more phone calls.

God Bless her & you.

 

[longsally111]

well**************.

thanks Ami. Since I put up the last posting, the ca called again and she told them that she was aware of the FDCPA violation. The CA woman then stated that she NEVER said she would wage garnish , called her a deadbeat and hung up on her. I did speak to her about ch7 but she stated that she could not afford to do even that. I will tell her about the free legal help though and see what comes of it. PS: she only has a cell phone, no home phone

 

[longsally111]

Update:

She sent a letter return receipt to the company notifying them of 4 violations of the FDCPA.

1. They told her they were going to wage garnish which is illegal in this state (807)
2. She gets calls on her cell phone after repeatedly telling them not to, using her minutes
(808)
3. Called her a deadbeat and other names on the phone (806)
4. Calling and harassing her after C&D letter was received. (806)

She spoke with a supervisor who brushed her off and she has now sent a copy of the letter to the States Attorney general and the Federal Trade Commission ( although I am not sure what they have to do with it)

Where is DC when i need him?

 

[Debt Guy]

Sally

I am no DC with I will try to answer.

I skimmed though this pretty quick so I may have missed some of the fine points of the thread. Here are SC statutes:

INTEREST RATE
Legal: 8.75%
Judgment: 12%

STATUTE OF LIMITATIONS (IN YEARS)
Open Acct.: 3
Written Contract: 3
Domestic Judgment: 10
Foreign Judgment: 10

BAD CHECK LAWS (CIVIL PENALTY)
Reasonable court costs amount of check& damages up to $500 or 3x check amount whichever is smaller

GENERAL GARNISHMENT EXEMPTIONS
100%

COLLECTION AGENCY BOND & LICENSE
Bond: No
License: Yes - all business
Fee: No
Exemption for out-of-state collectors: License required for instate agency only.

​

SOL is a short 3 years. Is the debt within SOL? If it is outside SOL, it is safe to send a C&D and then monitor for a lawsuit. Keep in mind that SOL is not a bar to SOL but merely an affirmative defense.

SC does not allow a wage garnishment. However, a judgment creditor can still garnish a bank account.

As regards "threats" by a DC -- first, SC is one of only a few states that do not allow wage garnishment, so it is possible the DC misspoke. If so, the CA will invoke the "bona fide error defense".

Otherwise, any violation of the FDCPA lands squarely in the lap of the consumer. That means the consumer must take affirmative action and bring suit against the CA for violation. There are no FDCPA cops to call.

Also, in this FDCPA case the consumer is the plaintiff. As a matter of law, it is always the burden of the plaintiff to prove the violation. It is never the burden of the defendant to prove they did not violate (you cannot definitionally prove a negative).

The consumer may be right but if they can't win the game, why play?

Seems to me the real risk is that the judgment hangs around a lo g time and messes up the credit score. Also, the judgment debtor won't be able to have a bank account with risk of it being garnished.

Every choice has pros and cons. Make sense?

 

[longsally111]

well**************..

yes, however, there is no judgement. They are simply telling her things to scare her. They can try to take her bank account. Her boss is a friend and he woud simply cash her checks for her or pay her in money order form.

 

[Chien]

I thought that I’d had every scam attempted against me at least once, but that would be a new one and, I think, a very bad idea for the employer.

If she has the situation that you describe, if they take a judgment, her earnings are probably 100% exempt anyway.

1) She’s going to get a W2 and file taxes, but she has no apparent earnings?
2) She’s locked to the employer to provide those “services” for the life of the judgment and, as DG notes that can be a very long time (10 years, even if not renewable).
3) To be entitled to a “bona fide error” defense, the CA agency would first have to prove that it had a compliance policy to avoid such an error, and that’s their burden, but the rest is hers, and she hasn’t got the money to sue, unless she can find a contingent or pro bono attorney, so isn’t it academic?
4) I haven’t researched the legislative history behind the garnishment proscription in SC but I’d bet I could get the employer for some SC statutory violation, when that truth came out. If an employer lies/”misstates” earnings for an employee/friend in states that do permit garnishment, you can hold the employer liable for the amount due via a “creditor’s suit in equity”. What you’re suggesting is close enough that I have to believe the employer would put himself/herself in jeopardy. Do the research and prove I’m wrong, because I’m sorry for your friend but, if everything she has is exempt anyway, why risk a scam? At some point, they’re going to stop spending money to investigate assets they can’t reach and treat her as “functionally judgment-proof”. When/if that changes, they’ll be back again.

 

[bigun]

she and her husband lost EVERYTHING!!!! Their house was bank repo'd and sold at auction and she ended up owing nothing on it though so she got lucky there. Her husband stopped the payments on her car and they repo'd that too. She bought a good used small vehicle on her sisters cc and has been making regular payments for the last 1 1/2 years. She has NOTHING for them to take. She is below the poverty line. Capital one was the original creditor and they charged it off and sold it to a bottom feeding collection agency who has already inflated the bill from 3000 to over 8000.00. They keep calling her up and telling her to charge it!!!! She has no CC's and barely survives.

I did tell her that they might have a judgement that she does not know about, however, I do not think that is the case here. Even if they did, her credit is already ruined and as I stated before, they do not wage garnish in this state!!!!

BTW, what does DV mean? You said she should DV them. huh?[/QUOTE

Her problem is not debt but, lack of income. She needs to start looking for a better job ASAP. Who wants to spend a lifetime in poverty? Were I her, I'd put all this on the backburner until my financial situation improved.

 

[bigun]

What you’re suggesting is close enough that I have to believe the employer would put himself/herself in jeopardy. Do the research and prove I’m wrong, because I’m sorry for your friend but, if everything she has is exempt anyway, why risk a scam? At some point, they’re going to stop spending money to investigate assets they can’t reach and treat her as “functionally judgment-proof”. When/if that changes, they’ll be back again.


Not sure why you suggest this is a scam since, the wages are exempt from garnishment. There is no law saying, an employer must hand out paper checks. If he wishes to pay cash or with a MO, where is the scam?
Also, no law says anyone must maintain a bank account. A lot of people cash there checks at WalMart for a few dollars fee.
Me, I wouldn't do it just because I'd not want my boss knowing all about my personal problems.

 

[longsally111]

The bottom line

well, when it comes down to it, it still amounts to the fact that she has nothing. The job she has is Part-time so she doesnt have to give money for daycare. The ex-husband and her have an agreement where her mortgage is payed by him in leu of money( cash). The food stamps pay for food, the kids are on medicaid for insurance. She makes just enough money to pay for lights, phone, cable, gas for car, car payment, insurance on car and clothing for kids which she gets at goodwill. I told her to just keep living as right now, there is no judgement anyway. If they get one and take her account which would only have a few hundred in it, then she knows to cash her checks at wal-mart instead and pay everyone in cash. As a matter of fact, I advised her to do that already just in case she gets served. The truth is, you cannot get blood from a turnip and she has nothing to take. I hope that the collection agency will see this and decide that she is not worth persuing. As far as her credit goes, it is in the toilet already so it doesnt matter. Thanks to everyone for the replies. I am now going to print this out and give it to her to read.

 

[bigun]

If she has a mortgage, she does have something-real estate.
In many states, a judgment creditor can place a lein against a house. The judgment along with the accured interest would have to be satisfied before the house could be sold.

 

[TigerD]

I didn't respond because:

1. The advice you gave your client will most likely get them sued.
2. You have to have one of those pesky law degree thingys to practice law.
3. I think you crossed the line into unlicensed practice of law some time ago.

There is a big difference between discussing how to do something and advising someone on what they should do and advising on basis of a legal analysis that you are not qualified to make.

DC

 

[Chien]

Not sure why you suggest this is a scam since, the wages are exempt from garnishment. There is no law saying, an employer must hand out paper checks. If he wishes to pay cash or with a MO, where is the scam?
Also, no law says anyone must maintain a bank account. A lot of people cash there checks at WalMart for a few dollars fee.

In fact, I don't know it's a scam, which is the reason that I made the point of not having checked the legislative history underlying the proscription. But the OP was making the suggestion that the proscription didn't matter, because it could be circumvented anyway, with the assistance of the employer.
To me, that's poor thinking. Why even consider it, when the proscription exists and there is no need? Even states that do permit garnishment impose statutory limitations. When the employer attempts to falsely limit or circumvent garnishment for the benefit of a well-regarded employee, unfailingly the employer puts himself/herself in jeopardy.
Paying the friend in cash or cashing the checks for her is unnecessary and, therefore, to me, "smells bad". At some point, the employer's books and the friend's tax filings don't match reality. Then, maybe the employer has a problem notwithstanding the proscription.
What's next, paying her under the table and the friend claiming she's unemployed?
And I made the same point that you essentially did: this little gambit also ties her to the employer, because the next employer, in a better paying job, could reasonably decline to do the same and require her to rely on her legal rights alone.
The "employer end-run" is just too convoluted, "dicey" and legally questionable to make sense.