debt collection Archives - Wetherington Hamilton, P.A.

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The Statute of Limitations in Collecting a Debt

January 30, 2018/in Articles, Debt Collection/by Ted Hamilton

All states have a limitations period which restricts the time period that you can file suit to collect a debt. Some statute of limitations periods are as short as one year and some up to 20 years. In Florida, generally, the limitations period to sue to collect an unpaid obligation is five years for a written contract and four years on an unwritten agreement (see Florida Statutes Chapter 95).

Many factors can affect the limitations period. A contract may clearly be in writing and other times it may be a matter of interpretation. A written promissory note or guaranty signed by the responsible party is clearly in writing. An oral agreement is usually governed by the four-year limitation, but if there are writings that confirm the agreement the five-year statute may apply. The statute of limitations period may also be tolled (extended) under certain circumstances (see Florida Statutes 95.051). A payment on a debt extends the limitation period. Suit may be brought within four years from the date of last payment on an unwritten agreement and five years on a written agreement. The statute may also be tolled if the responsible party has left the state, is hiding or files bankruptcy, which is later dismissed.

The statute of limitations for collecting on a judgment in Florida is 20 years from the date the judgment was entered. Note that this is different than a judgment lien, which results from recording in the public records a certified copy of a final judgment. This lien is good for 10 years from the date the certified copy is recorded. It may be extended by re-recording for another 10 years.

For a creditor suing or attempting to collect a consumer debt (a debt for personal, family or household purposes) it will be a violation of the Fair Debt Collection Practices Act (15 USC 1601) to attempt to collect, if the debt is past the Statute of Limitations.

Thomas K. Sciarrino, Jr., Esq. is a veteran collections attorney with 38 years of experience in handling Commercial Litigation, Collections, and Creditor’s Rights. He is the head of the collections department at Wetherington Hamilton, P.A. In addition to practicing law, he has also lectured on creditor’s right before various business and professional groups. He can be reached at (813) 676-9082 or by email at info@whhlaw.com.

When is Someone Entitled to Florida’s Head of Household Exemption?

May 15, 2017/in Articles, Debt Collection/by Ted Hamilton

Once a creditor obtains judgment against a debtor and collection efforts begin, there are several options for collection. One of the most effective options for collection of a judgment can be garnishment of wages or bank accounts. Garnishment statutes require strict compliance; all “I”s must be dotted and all “T”s must be crossed.

While there are several exemptions, head of household is a common exemption claimed by debtors. So how does one qualify as head of household and why is this important?

Florida statute section 222.11(c ) defines “head of family” to include “…any natural person who is providing more than one-half of the support for a child or other dependent.” When a judgment debtor claims head of household or head of family, if that person does not qualify for the exemption, then his or her disposable earnings may be subject to garnishment. However, if it is determined that the person claiming the exemption is actually head of household, then his or her wages would not be subject to garnishment.

Let’s break down the definition of head of household a bit. If a single person is supporting only himself or herself, he or she would not qualify for the exemption as there is no child or other dependent involved. Sometimes the question of whether or not an individual is head of household is clear. For example, a single parent, receiving no child support or assistance from the other parent, might easily qualify for the head of household exemption. On the other hand, a single parent with shared custody of two children, may or may not qualify as head of household, depending on the specific facts of the case. Or what if a debtor is caring for and supporting a special needs or elderly adult? These questions can become more involved. The attorneys at Wetherington Hamilton, P.A. are experienced in handling this type of debt collection and related matters. Call us today at (813) 676-9082 to schedule your consultation.

Joan Wadler, Esq.

Servicemembers Civil Relief Act (SCRA) – Protections and Ramifications

February 20, 2017/in Articles, Debt Collection/by Ted Hamilton

The Servicemembers Civil Relief Act (SCRA), formally known as the Soldiers’ and Sailors’ Civil Relief Act, is a federal law affording certain protections to military members in civil actions under 50 U.S.C., and it’s extremely important to consider the protections this law provides and the ramifications it may have on civil actions and proceedings.

This federal law applies to members of the uniformed services such as the Army, Navy, Air Force, Marine Corps, or Coast Guard. The purpose of the Act is to provide certain protections to military members who have obligations that are affected by their active military service. The protections provided under the law may affect a number of actions such as entry of default judgments, mortgage obligations, eviction processes, collections practices, and other debts or obligations that were entered into by a military member.

The protections cover individuals during their time in service and for a period of time after completing service. As such, it is crucial to determine the military status of a defendant before proceeding with a civil action that may be covered under SCRA. In bringing forth an action, the Plaintiff must verify whether the defendant is on active military duty and provide the court with an affidavit setting forth the defendant’s military status or stating that military status is unable to be determined. The affidavit must be filed before the court can enter a default judgment and in some instances, a court appointed guardian must represent the interests of the defendant in order to proceed with the action unless the defendant waives their rights under the act in writing.

A service member may request a stay of the legal proceedings if the member’s current military duty requirements materially affect the member’s ability to appear and if military leave is not authorized by a commanding officer. In debt collection practices, a court order staying the action could prevent the entry of a judgment or the attachment of a garnishment. In a foreclosure action, the lender must get a court order to foreclose on a service member if the action is brought during the debtor’s active military service. Service members may also be afforded protections during an eviction process or if they are terminating an apartment or vehicle lease, however most of these protections apply to those debts or obligations that were entered into prior to active military service.

The Servicemembers Civil Relief Act can pose a number of issues and restrictions on civil proceedings, therefore it is important to be familiar with the Act and to be in compliance with all of the applicable requirements.

Ashley Simon, Esq.

Debt Collection and Judgment Collection – Hiring an Experienced Attorney Counts

January 30, 2017/in Articles, Debt Collection/by Ted Hamilton

After having practiced law for over 25 years, you would think I would have seen everything. Yet, every day presents a new type of matter with slightly different facts from the others that have come across my desk. From the debtor who paid his $850 dollar debt with a box of quarters, to the interesting friend who paid the debt of his other friend after having been served at the nudist resort, each case is interesting in its own way. Each matter teaches us something new: A new way to deal with litigation, a new way that an individual or entity can try to hide assets, a new way to collect on a judgment. This experience helps us collect a judgment or collect a debt where other attorneys might find the judgment uncollectable.

Our experience lends itself to Judgment enforcement and debt collection when all seems lost. For example, one of our clients sold his business to someone who failed to pay the remaining amount due on a note for the sale of the business. After lengthy litigation in another state, a judgment entered in the case for over $200,000.00. The attorney in the other state called us to assist in collection of the judgment. The debtor had moved to Florida. (This often happens due to Florida’s unlimited homestead exemption). We immediately filed paperwork to localize the foreign judgment in Florida. (This made the Foreign Judgment a valid Florida Judgment). After taking the deposition of the debtor, we found that the debtor had supported his wife and paid his son extensive amounts over the years prior to entry of the judgment. All of his money had gone into his wife’s account or into a joint account. At this point, we sued the wife and son on a fraudulent transfer theory. After setting the wife and son for deposition and moving for a trial, we settled the case for a substantial amount.

Example after example exists where our experience has proven extremely valuable in judgment collection and judgment enforcement. Our firm handles debt collection, Judgment collection and other commercial litigation on a contingency or hourly basis depending on what works best for the client. If you have a debt that is due to you or a judgment that has gone uncollected, let us know. We can help! Please call Ted Hamilton, Kalei Blair or Thomas Sciarrino in our office or email info@whhlaw.com for more information.

Theodore J. Hamilton, Esq.

Florida Consumer Collections Practices Act

June 19, 2015/in Articles, Debt Collection/by Ted Hamilton

Many creditors collecting consumer debts have heard of the Federal Law known as Fair Debt Collection Practices Act. They may be aware that its provisions do not apply to them, but to third party collectors who collect consumer debts. However, Florida has its own version of the law governing collection of consumer debts found in Florida Statute. §559.72 called the Florida Consumer Collections Practices Act. Its provisions apply to anyone collecting a consumer debt, which are defined as any debt for personal, family or household purposes.

There are seventeen prohibitions on persons collecting consumer debts under thee Florida Consumer Collections Practice Act. They are:

One may not “simulate in any manner a law enforcement officer” or any other governmental agent.
One may not “use or threaten force or violence.”
One may not “tell a debtor who disputes a consumer claim” that “information affecting the debtor’s reputation for credit worthiness” will be disclosed to third parties, unless one tells the debtor that such disclosure will be supplemented with the fact that the claim is in dispute.
One may not “communicate or threaten to communication with a debtor’s employer prior to obtaining final judgment against the debtor.”
However, one may make this type of communication if “the debtor gives his permission in writing . . . or acknowledges in writing the existence of the debt after the debt has been placed for collection.”
Also, one may tell the debtor that “his employer will be contacted if a final judgment is obtained.”
One may not disclose to an unrelated third party “information affecting the debtor’s reputation . . . with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.”
One may not “disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact.”
What if one discloses information concerning the existence of a debt before the debtor reasonably disputes the debt in writing? Then “the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom initial disclosure . . . was made.”
One may not “willfully communicate with the debtor or any member of his family with such frequency as can reasonably be expected to harass . . . or willfully engage in other conduct which can reasonably be expected to abuse or harass . . .”
One may not “claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist.”
One may not “use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of his family.”
One may not “use a communication which simulates . . . legal or judicial process or which gives the appearance of being authorized . . . by a governmental body, or an attorney-at-law, when it is not.
One may not “communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare.”
One may not “orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney.”
One may not “advertise or threaten to advertise for sale any debt as a means to enforce payment,” except through a court order or assignment for benefit of creditors.
One may not actually, threaten to, or cause a publication or posting of “individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of . . . collection.”
One may not “refuse to provide adequate identification . . . when requested to do so by a debtor from whom he is collecting or attempting to collect a consumer debt.”
One may not write words on the outside of an envelope or a postcard that are “calculated to embarrass the debtor.”
One may not “communicate with the debtor between the hours of 9:00 p.m. and 8:00 a.m. in the debtor’s time zone,” without the prior written consent of the debtor.

The penalties for violations can be costly. If a creditor has repeatedly “harassed” a consumer, but has not engaged in a clear pattern of abuse, an administrative fine up to $1,000 may be imposed. A debtor who has been “harassed” may bring a civil action. A successful debtor will be entitled to recover the greater of $500 or his/her “actual damages” from the violator. In addition, the debtor shall recover “court costs and reasonable attorney’s fees.”. It is within the Court’s discretion to award punitive damages to a successful debtor. The Court may also “provide such equitable relief as it deems necessary or proper, including enjoining the creditor from further violations.”

The area where some creditors can get tripped up is communicating with a debtor when you know the debtor is represented by an attorney. The civil penalties can add up if the violations are severe of if you have to pay the debtor’s attorney’s fees.

Thomas K. Sciarrino, Esq.