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home | Legal Issues | Legal Issues Archives

Legal Issues continued

Displaying Matches 17 thru 31 of 64 Found.  BACK NEXT

Case Study: Is This Collector in Trouble Under the Fair Debt Collection Practices Act?
In this legal case study, we examine a situation in which a collector calls a debtor who is three months behind in his payments, only to find he's out of work. After some conversation, the collector offered an implied threat that he'd come over and repossess his furniture. Is this kind of threat going to get him in trouble with the Fair Debt Collection Practices Act (FDCPA)?

Read on for an interesting case, along with the answer and our analysis of this situation, in particular, what the FDCPA says about the collector's actions. Also learn: what property is exempt. . . .
keep reading

Contractual Conditions and Collections
by Rene Sacasas, J.D.
This legal case examines the concept of conditions in contracts, and explains the three major forms of conditions:
  1. conditions precedent,
  2. conditions subsequent, and
  3. conditions concurrent.
. . .
keep reading

Legal Case Study: Did This Agency Violate the Fair Debt Collection Practices Act When Trying to Collect an Old Student Loan Debt?
This case study examines a number of potentially troubling actions by an aggressive collection agency charged with collecting a 12-year old student loan. She claims that the loans were discharged in bankruptcy. But the agency doesn't see it that way. They just have paperwork indicating she owes the money and they want it. Now that she has a good job, they garnished her pay check, further infuriating her. Read on for the results of this collection action and subsequent dustup! . . . keep reading

Guaranty or Suretyship?
In June, John Conte agreed to purchase a used car from Barnum Cadillac. Because John had a poor credit rating, his brother, Frank, agreed to cosign the installment sales contract. Frank signed the contract on the line designated "Buyer," and John signed on the line designated "Co-Buyer." Barnum then assigned the contract to General Motors Acceptance Corporation (GMAC). In May a year later, GMAC declared the contract in default. After attempting to locate the car for several months, GMAC finally found it in a condition of total loss. GMAC brought an action for damages, but because service of process was never effected on John, the action proceeded only against Frank. Frank argued that he was a guarantor of the contract between John and GMAC and that GMAC would have to attempt to bring suit first against John before it could proceed against him. Is Frank right? . . . keep reading

Case_Study: Does Chapter 7 Filing Allow Discharge of Scholarship Debt?
This legal case study looks at a situation in which a woman files Chapter 7 bankruptcy and believes her debt to a national medical scholarship program is dischargable. But the program, which paid her medical school expenses, noted that she agreed to practice medicine for four years at a location chosen by them. If she defaulted, the contract specified a liquidated damages provision whereby she owed them three times the amount of the scholarship plus interest.

The debtor countered that her debt was dischargable under Chapter 7 because of the size of the debt and because it was classified as "unconscionable."

How did the court rule? . . .
keep reading

Can Creditor Pocket Extra When Repossessing Collateral?
This case study looks at a situation in which an auto dealer (but it could be any creditor) repossessed a car from a delinquent debtor. The debtor was, in fact delinquent. But she argued that the dealer owed her money and had no right to keep the extra equity in the vehicle. The case examines exactly what the Federal Trade Commission (FTC) allows in this scenario. . . . keep reading

Do These Extra Goods as Loan Collateral Negate a Purchase Money Security Interest?
This legal case study looks at a scenario in which a debtor claims that the refinancing of her loan by her bank caused the bank's security interest (a purchase money security interest, or PMSI) to be lost and her loan to be avoidable. Is she correct? . . . keep reading

Collections and Caller ID
This case study explores the privacy issues associated with debt collection, in particular as it relates to caller-ID. It examines the impact of the Fair Debt Collection Practices Act (FDCPA), the Federal Communication Commission (FCC), as well as state regulations on privacy. What an agency (and sometimes general creditor) can and cannot do, along with conflicting state regulations. . . . keep reading

Deeds in Lieu of Foreclosure
This legal case study looks at a situation in which a contractor ended up taking over the second mortgage on an office complex he'd done work on. After the owner of the office complex paid him late a few times, he offered to turn over the property to the contractor to fully satisfy the mortgage. This case and its analysis examines the concepts of judicial vs. non-judicial foreclosure, and what is involved in each, including an overview of what procedures are required in each process.
  • How long a non-judicial foreclosure usually takes
  • Why a deed in lieu of foreclosure is an attractive alternative
  • How you (as creditor) should proceed if the property is worth less than the mortgage
  • Why courts sometimes frown on these transactions
  • The importance of independent appraisals in the process
  • Steps to take to protect against future preference claims
  • How when the same person owns a mortgage and the property, the mortgage merges into the title and why this can present a strategic disadvantage to the lender... What steps you should take to protect yourself.
. . .
keep reading

Arbitration and Third-Party Beneficiaries
Legal case study: In this case, a spouse failed to sign, along with her husband, a clause in an installment contract agreeing to submit to binding arbitration in the event of a dispute. When a dispute occurred, the vehicle company requested that they submit to arbitration, but they refused, stating that her failure to sign rendered the contract invalid. This reveals who won and why. . . . keep reading

Validation Notice: A Violation of the Fair Debt Collection Practices Act?
Mary purchased a bed and defaulted on the payment plan. The ABC Furniture Co. referred the claim to a collection agency and the collection agency wrote a letter claiming both Mary and her husband Bill were liable. Bill then called the agency and told them that he and Mary were divorced, and he, therefore, was not responsible for the debt. Bill never communicated to the collection agency in writing and assumed that the matter had been closed. About three months later Bill and his new wife applied for a mortgage on a new house. When the credit reports were ordered, he learned that the debt was still being reported and not as a disputed debt. At that point Bill retained a consumer attorney and instituted a suit against the collection agency for violation of the Fair Debt Collection Practices Act. Is the agency liable?
  • In addition to the "basics," the three key things that a validation notice must contain
  • Technical interpretations being applied to the statutory language in the Fair Debt Collection Practices Act
  • The true test for determining if a debt collector falsely reported a consumer debt
. . .
keep reading

Interest on Security Deposits
"Where's my interest?" demanded Barbara when the automobile leasing company representative handed here a check returning her security deposit. "Interest?" the man replied. "That's right," she said. "You held that money for three years while I had the lease. You must have made money with it, and the law says I'm entitled to that money." The finance company management sent Barbara a letter refusing to pay her interest and stating that the sums were commingled with other security deposits, and that there was no agreement under the terms of the lease agreement requiring them to pay her any interest. At that point Barbara instituted a suit against the auto finance company claiming that the deposit was collateral, that the company was required by the Uniform Commercial Code to hold that collateral separately from other collateral, and that she would be entitled to the interest earned over the three-year period. Does Barbara have a case? . . . keep reading

Is this a Consumer Debt or a Business Debt?
James Moore purchased computer equipment from ABC Electronics for the grocery store he had operated for almost his entire life. Repeated illnesses forced him to close the store, however, and he was unable to make payments and finally defaulted. ABC wrote him three letters and then referred the matter to a collection agency. The agency called Moore at his place of business several times, and each time they got a recorded message. Then, after a search at the county clerk's office turned up Moore's home address, the agency began placing calls to his home. After the fourth call, Moore consulted an attorney and instituted a suit against the agency for violation of the Fair Debt Collection Practices Act. Moore charged that the telephone calls constituted an abuse of debt collection practices and that since he was an individual doing business as a trade name, he should be covered under the Fair Debt Collection Practices Act. The agency argued that Moore was a business debtor, and that therefore the transaction was not a consumer transaction and should not be covered under the FDCPA. Who is right? . . . keep reading

Uh oh! Is this technicality enough to derail payment?
Phil Curran was only too happy to sign the promissory note Bill Walton of Walton Building Supplies had prepared for him. Walton was providing $20,000 . . . keep reading

The Doctrine of Necessities
"You have absolutely nothing to worry about," Sharon Green told Earnest Miller impatiently. "Mrs. Green," Earnest replied, "I think $1,700 is quite . . . keep reading

Displaying Matches 17 thru 31 of 64 Found BACK NEXT

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