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Creditor goofed up and did not pursue collection, What now?


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Hi Everyone,

 

So there is a default judgement against me from magistrate court for about $2,000 with an original creditor (WFNNB) from 3 years ago. 

 

The lawyers representing the OC apparently never filed their post-judgement paperwork correctly or forgot to pay a fee.  As a result, no Writ of Fi Fa was ever created and no lien was placed on my house.

 

Sounds like great news, but now I tried to refinance my house and the title insurance company says the judgement has to be cleared up first, despite the fact there is no lien on the house.  This outstanding judgement alone is enough to gum up getting a clean title.  Judgements basically never "expire".

 

It's too late to do anything about the default judgement and the lawyers did not make any mistakes in serving the papers, so nothing there for me to get the judgement vacated.   

 

The lawyers no long represent the OC and gave me the OC phone number to call.  

 

My assumption is I need to negotiate a payoff with the OC and get them to write a letter to the court telling them the judgement is satisfied.      

 

Anyone been in this situation before?  Any suggestions?

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It's probably not the lack of a lien on your title that is creating the problem; rather, the judgment on your credit report is preventing extension of credit.

 

I agree ........  a settlement with the OC is probably your best avenue of approach ........ sadly, with a judgment in their pocket you have little negotiating power other than to pay the judgment off.

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The title insurance company told me it is the judgement itself being on the court docket that is holding up the title from being clear.

 

I do have a post-judgement letter from the lawyer 3 years ago stating that they would accept 50% as settlement.  My hope is that the OC will be willing to still settle for that amount and not hold my feet to fire to get 100% plus interest.

 

I guess I will find out when I call them tomorrow.

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If they even get an idea that you want to re-fi they will NOT settle for any amount. They will want every dollar they can get. If you contact them just let them know that you are now willing to try and settle and try for less than the 50%. That way you can go up if you have to. If they smell money (blood) they will want it all so beware. Proceed with extreme caution.

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  • 2 weeks later...

So here is what I discovered and how it ended up .........

 

The OC WFNNB (now known as Comenity Bank) originally hired Ohio debt collection lawfirm WWR.   WWR is not licensed in Georgia so they hired Greene&Cooper (GC).   GC got the default judgement in Georgia State Court.  No one ever followed up to get an actual writ of Fi Fa or a lien against my house.

 

Fast forward 3 years and now I want to get a refinance on my house.

 

I contacted GC.  They will not talk to me because WWR is not paying them to handle the case anymore and CG considers the case closed.  I called Comenity Bank and they told me to call WWR.  WWR will not talk to me because they say their case is close and I should call Comenity Bank.

 

After a few times around on this merry-go-round over the phone, I finally found someone at Comenity Bank who would take my money as payment for the judgement.  They accepted 40% of the original card balance as settlement and will send me a letter that the title company will accept so I can get my refinance done and get the judgement marked as satisfied.

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  • 5 months later...

So it turns out that this story did not end when I made the payment directly to Comenity Bank to settle the judgement and was able to refinance my house.  

 

Part 2 of this saga is even more crazy than Part 1 and ends with a pleasant surprise!  Money falling from the sky!!    :woohoo:

 

 

As I mentioned before, Greene&Cooper had flatly refused to communicate with me because they no longer represented the OC WFNNB (now known as Comenity Bank).

 

In February, I sent a letter directly to Comenity Bank asking them to submit the notice of satisfaction of judgement, which they had not done.   The Bank never responded. 

 

 Per O.C.G.A. § 9-13-80, the judgement creditor is required to submit a notice of satisfaction of judgment to the court clerk within 60 days of the settlement payment.  The law states that we can sue the creditor for $100 if they fail to submit the notice on time.  I made it clear in the letter that I was willing to sue them.  

 

I put the issue on the back burner while I was doing other stuff.  Then on June 20, 2014 it appears that Greene & Cooper had resumed representation of WFFNB (Comenity Bank) after all.  I received TWO letters (identical copies) from Ana Morrison (paralegal) at GC seeking to collect on the judgement in this case which had already been paid off !!

 

 

 I wrote an email to the managing attorney at GC.  But I did not threaten any lawsuit about the fact they tried to collect on a paid off debt, because I knew that the FDCPA does not apply to OC's like the Bank.

 
The email read as follows:
 
 
Hi Mr. Yarbrough,
 
It appears that Greene & Cooper has resumed representation of WFFNB (Comenity Bank) after all.  Today, I received TWO letters from Ana Morrison at your office seeking to collect on the judgement in this case which has already been paid off.  See attachment.
 
The settlement payment was made directly to Comenity Bank on January 28, 2014.
 
I have also attached the following documents that will allow you to fulfill your role as the plaintiff's attorney to submit a notice of satisfaction of judgment to the court clerk so the clerk can mark the judgement as satisfied on the docket and close out the case.
 
1. Settlement confirmation letter via fax from Comenity Bank.
2. My bank transaction confirmation of the payment made to Comenity Bank.
 
 
Per O.C.G.A. § 9-13-80 (see attachment), you are required to submit a notice of satisfaction of judgment to the court clerk within 60 days of the settlement payment. It has obviously been longer than 60 days and Comenity ignored a letter sent directly to them in February asking them to submit the notice of satisfaction of judgement.
 
Remember, there was no actual physical FiFa document issued in this case even though it was approved by the judge, so you will need to send the clerk an affidavit stating that the judgement is satisfied based on your knowledge and the attached documents.
 
Please confirm you will take care of resolving this immediately and that your firm will not contact me again except to provide a copy of the notice of satisfaction you send to the court.
 
Thank you in advance for your help.
 
If you need more information, please call or email me.
 
 
 
Unfortunately, I never received any kind of response from GC to let me know they were going to fulfill their responsibility and wrap this up correctly and stop their collection attempts.  So I started investigating what options were available to go on offense against an OC since FDCPA does not apply to them. 
 
That is when I discovered something wonderful...  the Consumer Financial Protection Bureau (CFPB).  More specifically, I found two bulletins from CFPB where in 2013 the CFPB decided that the rules of the FDCPA DO APPLY to Original Creditors such as banks and not just to Debt Collectors.  (See bulletins attached.)   And the CFPB has a website where you can submit a complaint against an Original Creditor.  So that is exactly what I did.  I submitted a complaint online and told CFPB the entire story.  I then notified GC:
 
 
Mr. Yarbrough,
 
Due to lack of response from your office, I have submitted a complaint against Comenity Bank with the Consumer Financial Protection Bureau for unfair debt collection practices as demonstrated by Comenity continuing collection activities via your office after a debt has been paid.  In the complaint, I requested that Comenity's attorneys submit a notice of satisfaction of judgment to the court clerk as required by O.C.G.A. § 9-13-80 so the case can be closed on the docket.
 
Thanks.
 
 
A few days later, a lawyer from GC called me and said, "oh, we already sent the satisfaction of judgement to the court clerk!"  I check the court website online and verified that he was telling me the truth.  I said, "thanks for letting me know."
 
I looked on the CFPB website to see if there was a way to mark my complaint as resolved.  But there is no such option.    
 
Then I received a notice from CFPB that they were forwarding my complaint to the FDIC since they had authority over the bank.  The I received a letter from FDIC confirming they were investigating my complaint.  (That letter is attached here.)
 
I sent a fax to FDIC letting them know the issue had been resolved by the bank.   I thought the story was over at that point.
 
 
But there was one more final surprise....
 
Yesterday I received a letter from Comenity Bank (attached here) apologizing for their delay in closing the judgement and giving me a check for $100 !!    :ROFLMAO2:
 
 
 
 
 
 
 
 

201307_cfpb_bulletin_collections-consumer-credit.pdf

201307_cfpb_bulletin_unfair-deceptive-abusive-practices.pdf

comenity letter and payment.pdf

FDIC response letter.pdf

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@NormInGeorgia

 

If Greene & Cooper is a debt collection law firm, they are liable under the FDCPA.  

I'd try to find out if and when the bank informed G&C of the fact that you paid the judgment. If they informed the attorneys before G&C sent you those letters, you may have an FDCPA violation.

You might want to contact a consumer attorney.

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@NormInGeorgia

 

If Greene & Cooper is a debt collection law firm, they are liable under the FDCPA.  

I'd try to find out if and when the bank informed G&C of the fact that you paid the judgment. If they informed the attorneys before G&C sent you those letters, you may have an FDCPA violation.

You might want to contact a consumer attorney.

 

@BV80  :

 

Good point.  I will follow up and see if I can find out the date that Comenity Bank informed G&C that the judgement was paid.   

 

Does it make any difference that I actually notified G&C myself via email that the debt was paid the same day I paid it directly to Comenity Bank?

 

 

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You should definitely see a consumer lawyer:

 

In 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 459, 654 S.E.2d 428, 431 (2007), the Court of Appeals of Georgia held that a violation of the FDCPA was a per se violation of the Georgia FBPA, which can subject debt collectors to treble damages under the Georgia FBPA.

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 Greene and Cooper is a debt collection agency.

 

 

 

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