LVNV Funding, LLC

LVNV Funding. LLC is a national debt buyer located in Greenville, South Carolina  and owned by parent corporation, Resurgent Financial Group. Resurgent also buys debt for its own account.

Of particular interest is the purchase by LVNV of consumer debt originating at HSBC.  HSBC has long operated in the United States through various subsidiary entities such as Household Finance, HSBC USA and, HSBC Nevada, which issued HSBC credit cards. In 2011, HSBC closed its U. S. credit card operations to focus on its international business, and stopped issuing credit cards in the United States.  As part of this shift in focus, HSBC sold its U. S. credit card portfolio to Capital One Bank.  Each consumer HSBC card was replaced with a Capital One card. LVNV also acquired a large number of HSBC accounts, some from Capital One and some directly from HSBC.

Here’s why you need to know this: LVNV may have difficulty proving a valid “chain of title” for its HSBC debt – that is: LVNV may not be able to prove that it purchased your defaulted account, from the same HSBC entity which issued the credit card. Keep in mind that each HSBC subsidiary is a totally separate company. So a purchase from one subsidiary is not – as LVNV would have you believe – a purchase from any other subsidiary bearing the HSBC name. The seller of the account to LVNV must be the precise HSBC entity that issued the card. And often it is not ! This is a fatal flaw which can result in a highly favorable outcome.

Insofar as debts purchased from other lenders,  LVNV is generally amenable to settlement. So, if you’ve been sued by LVNV, contact us by phone toll-free at 877-551-0210 or by email at william@roseconsumerlaw.com to discuss your options; and keep your eye out for cases originating at HSBC.

 

 

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Lang, Richert & Patch

Lang, Richert & Patch is a general business law firm in Fresno, CA which devotes several of its twenty-plus attorneys exclusively to the practice of debt collection.

LRP is one of two California law firms representing large debt buyer Unifund CCR, LLC. The firm also represents debt buyers Thunderbolt Holdings, Ltd. and, Cavalry SPV I, LLC; and, on occasion, Wells Fargo Bank.

During the credit card wars with LRP over the past seven years or so, I have found their attorneys to be consistently competent, courteous, and reasonable in their approach to settlement. (I have no comment on their non-attorney debt collectors, whom I generally avoid since they cannot consider legal issues when negotiating settlement.)

Like many collection law firms, they lack the resources to take every case to trial. Typically, therefore, as trial approaches, LRP will become more flexible in its settlement demands. This tendency is not so much unique to LRP but is, rather, the way negotiations seem to work – the best deals tend to come as the deadline – trial – approaches. In “smaller” cases, however – say $2,000-$4,000, for example – the savings achieved by pushing a case toward trial, will be offset by larger attorney fees. Reasonable early settlements are also possible with LRP which will reduce your attorney fees.

In sum, ROSE CONSUMER LAW has a pretty decent working relationship with LRP. If you are interested in discussing how we can help you, call us at 310-581-6600 or email to www.william@roseconsumerlaw.com.

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Beware Debt Collection Telephone Scams

That venerable national gazette, The Topeka Capital-Journal has warned consumers to watch out for phony debt collectors targeting people who owe NO credit card debt.

What does this mean to the California consumer ? Simple: Whether or not you have outstanding credit card debt, insofar as debt collection telephone scams are concerned, you are definitely still in Kansas.

The article reports that a federal court has ordered five individual defendants and their companies to stop making threatening or  misleading collection calls to consumers, and telling them, for example: ” If you don’t pay this debt, your bank accounts will be closed, your wages will be garnished, and you will face felony fraud charges, and be arrested.” This stuff is way past legal. However, even though the consumers owed no debt, some though obviously ponied up.  Or the calls would stop. Wouldn’t they?

The Better Business Bureau even weighed in on the subject: “Similar scams have shown up with variations for some time. People attempting to extort money will often use official-sounding names like “Civil Investigations Unit,” “State Sheriff’s Office,” or “Federal Crime Enforcement Network,” and may use fake case numbers or the names of law firms in an attempt to scare people into paying.”

So, what should you do when a scammer comes calling? Here are suggestions:

• Ask for a “validation notice” of the specific debt. By law, they must give you a written account of the debt amount, the name of the creditor and a statement of your rights as specified by the Fair Debt Collections [Practices] Act. They must do this within five days of when they first contact you.  If they don’t agree to do so, hang up.

• Confirm that the debt collector isn’t a fake by asking for his/her name,  company, physical street address and telephone number. If they won’t give all of this information, hang up.   If they do, check the information and confirm that it isn’t phony.

• Go to annualcreditreport.com or call (877) 322-8228 and check your credit report for outstanding debts or suspicious activity that you didn’t authorize.

• Never – repeat NEVER – pay any money to someone you don’t know. NO MATTER WHAT THEY SAY!

• Report any threats to the police and file a complaint with the Federal Trade Commission at their website www.ftc.gov.  This BTW applies to “legitimate”debt collectors as well.

• Take notes of every debt collection call, including the date, time, name of the caller, name of the company, and what is said. Then salt your notes away for possible future use.

Finally, if you are able to get the  caller’s mailing address – for a scammer that’s a big “if” – you can send them a “cease and desist” letter instructing them to “cease and desist” all further telephone contact with you. Send this letter via certified mail, at a minimum, to prove delivery.  Any further telephone contact over a consumer debt violates the U. S. and the California Fair Debt Collection Practices Acts.

If you receive calls beyond that point or if you have any questions about this post, feel free to call me toll-free at 877-551-0210.

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Debt Collection Trial Delay: Winning the Waiting Game

If a debt collection lawsuit has been filed against you in Los Angeles County, it will likely take two years to get to trial, this up from the usual year.

If you’re a worrier, this is very bad news. Now you’re facing 24 months of misery until the dismal result becomes official – certainly the result will be dismal, you reason – instead of the usual twelve, which was bad enough. That’s double the lack of sleep. Couple of weeks without shut eye, you’re a basket case, ready to cough up everything they want, just to be done with it.

That’s the downside of the new case management plan in the Los Angeles County Superior Court, where a massive budget shortfall has forced the closure of 13 courthouses and layoffs of hundreds of court personnel, including clerks, assistant clerks, and judicial assistants. (OMG, judges will now have to read court documents themselves.) If this weren’t enough, all collection cases uncer $25,000 in LA county have now been transferred to two courts: Chatsworth for north county cases, and Norwalk in the south. To give you an idea of the log jam this will create, where once the Chatsworth court handled 20-30 civil cases a day, now – with reduced staff – the number is up to 80-90! Can you say Holy Molasses, Batman?

But what if high anxiety isn’t your raison d’etre? Or, What if you don’t need an early resolution, say, to clean up your credit so a pending home refi will go through? In that case, you may be ready to save some serious dough!

Here’s how: Plaintiffs’ lawyers are way to busy to try cases against competent consumer counsel who know the ropes. They’ll gladly take a discounted single payment on the “court house steps”, so to speak, to avoid the risk of loss at trial, and so they can focus their energies on the “low-hanging fruit” – defendants who represent themselves, that is.

So, if you can play the waiting game, do. And during those two years prior to trial, start building up your war chest so you can make a lump sum settlement payment before trial. These savings will pay dividends in the long run.

Posted in Credit Card Lawsuits | Leave a comment

The CA Credit Card Statute of Limitations is Four Years…… But Yours Could Be Three !

The California Statute of Limitations for Breach of Contract is four years.

Credit card lawsuits are based on breach of contract.

The breach occurs when you miss a payment and make no further payments or use of the card. From that day forward, the creditor has four years – not one day more – to file a collection lawsuit…..but in some cases, they only have three.

Here’s why: Credit card agreements contain a “Choice of Law” provision, which selects the state law which governs the rights and obligations of the parties under the contract. Bank of America, Chase and Discover cards are governed by the law of Delaware, where the banks are incorporated. The Delaware statute of limitations is three years. Thus, when you default on a credit card from one of these banks, a lawsuit to enforce collection must be filed within three years – to the day – from the default. After that, the action is time-barred. And a payment does not revive the statute.

Capital One cards have a Virginia choice of law provision where the statute of limitations is also three years.

Here’s another way to think about this: As long as you are paying on the account, the creditor has no right to sue you. It makes no sense either, since you are paying. Once you miss a payment, the creditor’s right to sue “vests”, and that creditor has either three or fours years to file suit in California. This time is also referred to as the “statutory period”. If you make a payment within the statutory period, the creditor is entitled to intepret this as an acknowledgment of the debt, and promise to continue making payments. Once again, it makes no sense to sue under that circumstance since a lawsuit would likely be counter-productive and cause the new payments to stop. This payment revives the statute.

So, three years instead of four is pretty good news. Here’s the VERY good news:

Collection attorneys in California frequently miss the distinction between four year limitation periods and three year periods, and, as a result, they file too late.

Thus, the moral of the story: If your collection lawsuit is based on a Bank of America, Capital One, Chase, or Discover credit card, compare the date of your last payment (and subsequent default date) to the date the lawsuit was filed. You may find the lawsuit is time-barred.

Finally, filing a time barred lawsuit to collect a personal credit card – as opposed to a business card – violates the federal Fair Debt Collection Practices Act (FDCPA) and the California Rosenthal Fair Debt Collection Practices Act (CRFDCPA). You may have rights against the plaintiff (the company suing you).

Feel free to call me at 877-551-0210 for a free consultation about any of the issues raised. I hope this was helpful.

Posted in Credit Card Lawsuits | 24 Comments

Can I Lose my Home over a Credit Card Debt?

“Can they take my home?”

That’s the first question many consumers – the worrying kind – ask me when they’ve been served with a summons in a debt collection lawsuit?
In California, the answer is: Hold on there. Not so fast!

Debt collectors can’t do anything until they get a judgment. But, what if plaintiff get’s a judgment. What then?

Once a judgment is entered, the plaintiff/debt collector becomes a “judgment creditor” who can collect by wage garnishment or bank levy. Judgment creditors can also “secure” the judgment by recording a lien against real property. Typically, the lien just “sits” there, earning interest at 10% per year, and is paid off when the home is refinanced, sold or when the homeowner dies.

Now for the good news-bad news: In California, a judgment creditor CAN collect a lien by foreclosure. Here’s the good news: I’ve never seen this happen in a credit card case. An attorney whose firm represents one of the major credit card banks in collection lawsuits told me recently: “My client has never foreclosed over a credit cared. The negative publicity would kill them.” There is no evidence that the other big banks think differently.

Still, in California there is no guarantee. Where California is often first in the nation for new trends, it lags other states in protecting consumers from foreclosure over a credit card judgment. The most recent state to pass legislation prohibiting these foreclosures? Hint: it’s one of the last bastions of liberalism….

You’re right….. it’s Louisiana.

It seems that after major debt buyer Unifund CCR Partners started foreclosing to collect credit card judgments, a law was passed to prevent the seizure of homesteads to collect consumer credit card debt.

Unifund hasn’t used foreclosure to collect credit card judgments in California, and, hopefully, the Louisiana law will “tip off” Unifund what to expect if they do. Still, why wait ’til the worst happens? Why not get out front of Unifund and its compatriot debt buyers, and catch up with them cajuns?

It’s time that California passed legislation prohibiting foreclosure to collect credit card debt.

The model is out there. Contact your local state rep.

For those who like reading legislation, here’s the Louisiana law:

Continue reading

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Debt Collector Harassment. Imagine Doing This for a Living.

In our constant effort to keep pace with the latest developments in debt collector psychosis, we find recent manifestations in the following incidents. If you’re looking for debt collector harassment, you don’t have to search much further.

First a brief review: The Fair Debt Collection Practices Act (FDCPA) governs the collection of consumer debt. Among the prohibited tactics, for example, are threats. Debt collectors can’t threaten consumers, physically or financially, and, they can’t threaten to take any action which they are not legally permitted to take.

Let’s see if these qualify:

Threats to dig up dead relatives! It doesn’t get any better than this. The debt collector, collecting an unpaid funeral bill, threatened to dig up the debtors’ recently deceased children, and hang the bodies from a tree outside the debtors’ front door if the bill wasn’t paid right away. I told you this was good. So good, in fact, that it won an award of $700,000……for the debtor.

In this next one, the kids are still alive.

Threatening to take away children. The Federal Trade Commission (FTC) brought a complaint against a debt collector who reportedly told a consumer over the phone: “We can take you to jail if you don’t pay now. We will send the sheriff to your work and drag you out the door. And while you’re in jail, the police will take away your children.”

Hey, end of the day, a guy still needs to put bread on the table.

Here’s another proven fundraiser: loss of liberty.

Threatening Arrest. For a $300.00 debt which the consumer said she had already paid, the debt collector called her workplace and told her co-workers that the consumer was going to be arrested, and that they would have to come down to the station and pick her out of a lineup.

Although this makes absolutely no sense, you’re not likely to be a critical thinker, when your crime causes co-workers such an inconvenience, and places you squarely center stage. (Though, in fact, you may second from the left)

Finally, there is one episode of debt collector abuse that is so “off-the-charts” twisted, so disgusting that I don’t feel comfortable passing it along here. So we’ll just skip it.

I mean, it is so sick, that one hesitates to give it life by mentioning it. I’ve thought about this a lot, and I just can’t.

Well, okay:

The FTC reports that collectors allegedly threatened to kill a debtor’s dog if she didn’t pay. And not just kill. Specifically, the collectors told a woman that they would have her dog “arrested, then shoot him, and eat him” if she didn’t pay.

Keep in mind that in order to protect her dog from arrest, all the consumer had to do was pay. Also, the FTC used the word “allegedly”, so it probably, really, never happened. Right?

I mean, c’mon. Debt collectors don’t say stuff like that.

Nobody’s that psycho.

Posted in Debt Collection Tactics | 2 Comments

Cavalry Portfolio Services, LLC (aka Cavalry SPV I, LLC)

Cavalry Portfolio Services, LLC is a debt buyer headquartered in New York which purchases “distressed consumer loans” – fancy talk for defaulted credit card debt. When Cavalry sues, the name of the plaintiff is likely to be Cavalry SPV I, LLC. “SPV” stands for Special Purpose Vehicle, a separate subsidiary entity designed to service and collect Cavalry’s debt.

Cavalry is represented exclusively in California by the Winn Law Group in Fullerton. While clients have reported problems with Winn’s non-attorney debt collectors, I have found their attorneys to be professional and reasonable. Given the opportunity, Winn prefers to settle cases rather than take them to trial. This business model is informed, no doubt, by two factors: (1) Cavalry cases suffer the from same lack of admissible evidence problems as do all debt buyer cases; and, (2) located in New York with hundreds perhaps thousands of cases in California alone, Cavalry is generally unwilling to bear the cost of flying witnesses cross-country to testify in cases with these problems. Consequently, as trial approaches against an experienced debt collection defense attorney, Cavalry is willing to accept settlements which are favorable to the consumer.

To learn how we can help you against Cavalry, please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 551-0210 for a free consultation, or you can provide your contact information to the right and we will contact you.

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CACH, LLC

We know CACH.

CACH, LLC is a national debt buyer located in Colorado which purchases defaulted consumer credit card debt from the major national banks, and collects for its own account.

CACH, LLC uses four law firms in California to file its debt collection lawsuits. They are: The Mandarich Law Group, with offices in Woodland Hills and a one-lawyer satellite office in Oakland, handles most CACH cases by far. CACH is also represented by The Neuheisel Law Group in Sacramento, the Kentwood Law Group in Montclair, and The Law Office of David Sean Dufek in San Diego. Of these, Mandarich seems the most willing to take CACH cases to trial, while the others have a more settlement oriented business model.

CACH cases suffer from the same core weaknesses as other debt buyer cases: (1) proving that the defendant owed money to the original creditor; and, (2) proving the CACH purchased the defendant’s defaulted account. Under California law, testimony from the original creditor is necessary to prove that a defendant defaulted on a credit card account and owed a debt. The large banks which sell credit card debt never make witnesses available for this purpose. CACH attempts to circumvent this requirement by substituting its own witness. Although such testimony is not legally sufficient, this tactic can be successful before a biased judge who doesn’t apply the law. Unfortunately, there are many of these jurists out there. With a “good” judge, you can beat CACH at trial. With a “bad” one…no chance.

One advantage negotiating settlement with Mandarich is the fact that Mandarich is over-loaded with cases and lacking in both experienced trial attorneys and CACH witnesses. They simply can’t try all their cases. Thus, their personnel shortage, combined with the risk of loss at trial, typically produces reasonable settlement offers in the days before trial.

To learn how we can help you against CACH, LLC please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 551-0210 for a free consultation, or you can provide your contact information to the right and we will contact you.

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Unifund CCR Partners, Inc.

Unifund CCP Partners, Inc. is a large national debt buyer based in Cincinnati, OH, which purchases, sells and manages “under-performing and distressed” consumer receivables, including defaulted consumer credit card accounts.

Unifund relies on two law firms primarily to file its debt collection lawsuits in California: the Fresno law firm of Lang Richert & Patch, and, from Los Angeles, Kenosian & Miele.

Unifund’s cases suffer from the same core weaknesses as other debt buyer cases: (1) proving that the defendant owed money to the original creditor; and, (2) proving the Unifund purchased the defendant’s defaulted account. Under California law, testimony from the original creditor is necessary to prove that defendant defaulted on a credit card account and owed a debt. The large banks which sell credit card debt to Unifund have not made witnesses available for this purpose, and there is no reason to expect a change. Think of it this way: What are the chances that a major national bank, dedicated to its bottom line, will fly an witness to California to testify in a trial in which the bank has no financial interest whatsoever? Let’s move on. Unifund typically attempts to circumvent this requirement with testimony from its own witness, submitted by declaration. These “declarants”, however, can be subpoenaed to trial for cross-examination. Since Unifund is similarly reluctant to incur travel expenses from Cincinnati plus lodging for its witnesses, favorable settlement offers tend to result in the days leading up to trial.

To learn how we can help you against Unifund CCR Partners, Inc. please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 551-0210 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Debt Buyers | 4 Comments