INTRODUCTION:
As an attorney licensed and practicing in Florida, New York and New Jersey, with a focus on Total Consumer Debt Relief, I am receiving more and more clients who were once signed into an alleged debt settlement program, hired a non attorney to address their debt or had already paid exorbitant amounts of money to such companies and their debt was NOT settled. Many of these practitioners fail to inform the debtor of their limitations, instead often taking loads of upfront money a violation of FTC and State Law, while not performing any service. I have also encountered many companies that promise to eliminate all debt.
THE PROBLEM:
These purported specialists fail to inform the debtor that they can only attempt to address unsecured debt such as credit cards and medical bill. A non attorney is legally prohibited from giving legal advice and most are not qualified to deal with secured debt like real estate mortgages or car loans. These companies also fail to inform the debtor that their "services" are merely a negotiation and not a legal one and that the creditor, credit card company or debt collection agency do not have any obligation to talk to the settlement company, let alone actually settle the debt for less than is owed. They don’t know or fail to inform the debtor about IRS tax consequences when a debt is forgiven or settled (over a certain Dollar amount). The last straw is when these debt settlement experts instruct the debtor to STOP PAYING on their debt. This raises very serious legal questions. Yet despite the many problems of addressing debt without a qualified attorney, many of these clandestine individuals and companies are signing up thousands of unassuming hard working Americans on a daily basis.
Debt settlement companies and non attorney settlement “specialists” do not work. Firstly, the debtors credit is already damaged at the point these companies start their game. Secondly, the negotiation can be achieved and handled by the debtor themselves without having to pay out money to get rid of debt. Something that is highly Counter-productive. Thirdly, the fees these companies charge are so outrageous the debtor is pushed into an even greater debt predicament. It's not as if the “expert” or debt settlement company has any formal training or qualifications to handle debt elimination and negotiation and there is no formal or legal template or system in existence.
THE SOLUTION:
The solution to REAL, LEGAL AND COMPLETE debt relief, is working through an attorney licensed and specializing in Total Consumer Debt Relief.
With an experienced attorney a debtor has the ability to view their financial hardship and debt in a total and comprehensive fashion and not in a bubble or vacuum of credit card debt alone. They are able to address and tackle the CAUSE and not the symptom and view and potentially address ALL DEBT both secured and unsecured including credit cards, medical bills, tax liens, car repossessions, mortgage debt, judgments, garnishments and foreclosures. This allows for a plan of action that is comprehensive and does not give the debtor temporary relief or a false sense of security while ignoring the 800 pound gorilla sitting right next door. The attorney will look at the debtors ENTIRE fiscal position and apply the best and most COMPREHENSIVE solution to tackle it ALL. The goal is to provide the debtor with LASTING relief and not mere sprinkles or pockets of hope. The debtor will be given the most appropriate legal solution to tackle ALL of their debt for once and for all. Perhaps the debts are so outrageous that the client is better suited for bankruptcy, thereby eliminating everything (barring some exceptions like IRS taxes, child support and alimony). Many debtors do not know that the Bankruptcy Code allows them to keep several valuable assets while simultaneously eliminating all debt. In fact, it is Federal Law, which says that a qualified Pension Plan such as a 401K or IRA and a debtors Life Insurance Policy, are off limits from any creditor and the Bankruptcy Court and Trustee. This means that when a debtor files for bankruptcy, provided they qualify in all other areas, they will eliminate all their debt secured and unsecured and still be able to keep their Pension Plan and Life Insurance Policy unscathed. Obviously bankruptcy is not an all encompassing solution and its ramifications need to be explored by the attorney on a case by case basis with the specific debtor’s situation in mind. Nevertheless, this illustrates just one example of a Comprehensive Debt Relief Solution and why a debtor is advised to seek out a qualified attorney to assist with their debt.
Even in the event the debtor is facing credit card debt exclusively and therefore perhaps may not be a good candidate for bankruptcy or cannot qualify for bankruptcy, a qualified attorney can accomplish the same settlement, if not better with more effective results, at far less cost, than any debt settlement expert or company will obtain.
The empirical data shows that the debt settlement companies "fees" including processing and "monthly" are so large and unfair that they put the debtor into an even deeper financial hole. An attorney must give a retainer agreement and layout in plain English up front, what he or she is doing for the client and how much it will cost. A good attorney will not even take money or start a case if they see that the client's desires are not legally possible or there is no legal defense. A qualified attorney will never make promises or guarantees about success, let alone promise total elimination or settlement. Certainly a qualified attorney will not give the debtor false hope and promise to eliminate any specific percentage of their debt. Unfortunately the debt settlement company’s standard protocol is to promise to eliminate 50 to even 90% of the debt. No one can make such promises especially when a creditor is not legally bound to listen, let alone negotiate.
ADDITIONAL PROBLEMS ARISE:
When a debtor hires a debt expert or company without hiring a qualified Debt Relief Attorney additional problems arise. There is also the all too common issue of multiple creditors and the inability of the expert or debt settlement company to get ALL of the debtors creditors into one all encompassing settlement. Worse yet, is the failure of the debt settlement company to contact the true and actual creditor making sure the party they are "negotiating" with is the true debt holder and not a third party collection agency without authorization to issue settlements, thus leaving the debtor open to collections down the road. What about the credit card companies and savvy banks who issue a settlement subject to reserving the right for a deficiency judgment? In English... “We will let you pay off the balance and reduce it by x% but we still reserve the legal right to sue you and come after you for the x% we temporarily forgave at a later time when you have income or assets.” Often such judgments stay in affect for 20 years and lead to wage garnishments, liens and writs of possession. A qualified attorney will make sure that any such settlement RELEASES the client from any future deficiency judgments. Most importantly the attorney has a huge trump card and bargaining chip. The credit card companies know that the attorney can eliminate their client's debt legally by assisting their client with bankruptcy or LITIGATING AND SUING the creditor, credit card company or debt collection agency.
LAWS PROTECTING DEBTORS
There are a myriad of different laws on the federal and state level that govern creditors, lenders credit card issuers and debt collectors and that can be used by a qualified attorney to find a breach of law and used to litigate on behalf of a debtor.
Examples of the more common laws are:
* The Truth in Lending Act. (TILA)
* State Unfair and Deceptive Acts and Practices. (UDAP)
* The Fair Credit Reporting Act. (FCRA)
* The Fair Credit Billing Act. (FCBA)
* As well as State Specific FDCPA laws.
Dozens of additional statutes and laws exist designed to PROTECT THE CONSUMER and govern the creditors. One slip up on any of these laws and a competent attorney can litigate and sue the creditor for such a violation. Common examples of violations are a creditor or lender not offering the client the necessary notices of increases in their APR (annual percentage rate), charging unexplained late fees, or mailing statements and bills late. The potential violation list goes on and on.
SUMMARY
A debtor gets the best of all worlds and solutions with a qualified Consumer Debt Relief Attorney. He or she goes into battle with a myriad of armor and weapons and is ready to fight all debt at its root. The client has experienced and effective counsel at their side and the attorney is equipped and licensed to challenge ALL of the client's debt even if it means litigation. Sometimes such litigation can end up making money for the client in cases of restitution and punitive damages. Furthermore, by hiring an attorney to handle their debt, the debtor is not "losing" their opportunity for debt settlement when it comes to credit card debt. The attorney can and if appropriate will negotiate with the credit card issuers, provided it brings the same or better results at a fraction of the cost to the debtor and that all the legalities and ramifications of such a settlement are addressed, such as no deficiency judgments and explaining the IRS tax consequences. The attorney can drop the ultimate bomb and simply end it all on behalf of the debtor by painlessly and effectively filing bankruptcy if appropriate. (For another conversation as to when bankruptcy should be explored and employed - suffice as to say it must be explored on a case by case basis). Using a qualified Debt Relief Attorney to tackle your debts including credit cards is a superior and a more successful methodology to tackling debt versus signing with an unknown expert or debt settlement company, especially when creditors are not legally obligated to negotiate.
We are being bombarded on TV and RADIO about "magical" debt elimination programs or hearing and reading of genius debt settlement systems. BEWARE, there are many unscrupulous folks and companies out there praying on those in debt, promising illegal solutions and taking loads of the debtor’s hard earned money while doing nothing.
Are there legitimate settlement companies and players? Perhaps, but their systems are economically flawed since they ask the debtor to pay out even more money.
Thus, it is important that a debtor educate themselves about all available debt elimination options, the process, players, pros, cons and alternatives.
Whichever way you slice it, debt is an ugly game and the faster and cheaper it takes to get out of it, the better. However, make sure the methods used and players engaged in them are legal and that you are not digging a deeper hole for yourself. Make your decisions on facts and law not emotion or based on cunning and false advertising.
Know your rights and remember while debt is a stressful matter, there are multiple laws in place to 1) Protect you and 2) Offer recourse and even potential restitution.
Consult with an attorney who knows how to use these laws and who will protect you. Any reasonable law firm should offer a free and comprehensive initial consultation.
Good Luck!
Authored By: Grant Phillips, Esq.
Grant is a licensed attorney practicing in the states of FL, NY and NJ with a focus on Consumer Debt Relief. He often blogs and writes under the name miamidebtlawyer.com, his articles are educational, thought provoking, deliberate and address Total Debt Relief, Bankruptcy and Consumer Relief Topics.
For more visit http://miami-bankruptcy-attorney.org
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