Attorney John Mlnarik
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What Happens in a Debt Collection Lawsuit?
Debt collection companies are often given a specific protocol to follow when collecting debts. Their owners may set out specific rules for these transactions. Additionally, federal and state laws often impose additional requirements regarding the collection of debt.
Common Collection Procedure
When a debtor is delinquent on his or her account, the original creditor will attempt to collect the debt on its own. However, if the attempts go unanswered and the debtor does not respond by paying the bill in full, the creditor may submit the debt to a third party debt collector. When a creditor refers a debt to a third party collector, it usually does so by selling the debt to the third party collector for cents on the dollar. The debt collector becomes the new owner of the debt and receives the rights of the original creditor to the balance owed. In other situations, the original creditor remains the creditor and pays the debt collection company a portion of the amounts collected on delinquent accounts.
Debt Collection Law Firm
If the third party collector is not able to collect on the debt, the debt may be sent to a debt collection law firm. The debtor is often made aware of the assignment to the debt collection law firm by receiving a letter. State and federal rules and regulations sometimes dictate the information and documents that must be included with this communication. The letter will usually state that the creditor has retained the law firm in order to represent it in collecting the debt. The letter also demands payment.
Normally, the letter will also state that the debtor has 30 days to dispute the debt and gives instructions on how such a dispute is commenced. The letter may also state that the debtor may face a civil lawsuit if he or she fails to respond and pay off the debt.
Role of the Debtor’s Attorney
Individuals who receive notice of involvement by an attorney may choose to seek their own legal counsel. A debt settlement attorney will handle all communications with the collection firm once he or she is retained and the firm receives notice of his or her involvement. Once the debt collection firm receives this notice, the attorney is authorized to act on behalf of the debtor. If the debt collection firm communicates with the debtor after notice of the debt settlement attorney’s appointment, such communication will likely be deemed improper.
The debt settlement attorney handles all negotiations with the debt collection firm. In many cases, a settlement can be reached in which the debtor pays a portion of the debt in satisfaction of the debt.
Filing of a Lawsuit
If the debt collection firm and debt settlement attorney cannot reach a settlement, an attorney for the debt collection firm will file a lawsuit in the state where the debtor resides. The debtor has a limited amount of time to respond to the legal complaint. If he or she does not file this response within the provided time, the debt collection firm can seek a default judgment against the debtor in which the court can rule in favor of the creditor who can then take steps to collect on the judgment.
Pleadings and Motions
A debt settlement lawyer can help protect the debtor’s rights by providing a response, filing certain motions and responding to certain motions and requests. If there are any applicable defenses, the attorney will raise them. For example, a statute of limitations may apply that bars recovery for an unpaid debt. A statute of limitations is the time limit in which a legal action must be filed in order for the court to provide relief. Other potential legal motions may include motions for discovery purposes, motion to quash the summons or a motion to dismiss the complaint.
If the court rules in favor of the creditor, the creditor may then take steps to collect on the judgment. The creditor can take steps to receive the money it is owed by asking for a lien on un-exempted real estate owned by the debtor, the sale of the debtor’s property or a garnishment on the debtor’s wages. The debtor’s attorney may be able to work out a consent judgment in which some of these actions are avoided. Such a judgment may be the result of a repayment plan that the debtor and creditor agree to. Individuals facing a debt collection lawsuit may wish to talk to a debt settlement attorney in order to learn about their rights and responsibilities.