Our client retained us when he was served with a writ of garnishment that tried to seize his wages.  Unknown to him, there had been a judgment entered against him about 17 years ago in County Court.  Our research revealed that the judgment stemmed from an automobile deficiency lawsuit following a repo.  However, we discovered that the law firm for the auto finance company had not followed the proper procedures for serving the lawsuit on our client.  Because of this failure, he had never been made aware of the lawsuit, and a judgment had been entered against him by default without his knowledge.  Using Taras Rudnitsky’s experience as a Florida consumer protection attorney, we were able to get the judgment vacated (set aside as no longer legally valid) due to the plaintiff’s failure to follow the proper procedures.

The deficiency judgment had apparently been sold by the auto finance company to Cavalry, who hired the firm of Wagner & Hunt to collect on the judgment.  Attorney Joanna Evans from Wagner & Hunt represented the plaintiff in this lawsuit.

Once we were able to get the judgment was set aside, we moved forward with vigorously defending the underlying deficiency judgment.  Based on a review of the auto finance paperwork and our knowledge of the automotive industry, we were confident we would prevail on several of our affirmative defenses.  These defenses applied even though the lawsuit was initially filed 17 years ago.  As a result of our hard work, the lawsuit was permanently dismissed without our client having to pay anything.

If you have been sued in an auto deficiency lawsuit, or if you have had a judgment entered against you without even being notified of the lawsuit, we can help.  We would be honored if you selected us for a free, no-obligation consultation about your rights as a consumer.  Just call us toll-free (1-888-834-5297), write to us, fax us, or contact us by email to ensure you do not lose your rights.

We periodically get inquiries from potential clients asking about their rights after their vehicle get repossessed (repo’d).  This post generally summarizes your legal rights when your car is seized in  a repossession.

The first question that arises is whether your finance company even has the right to repo the vehicle.  Generally, the lender can repossess the vehicle if you are in default.  Default occurs when you have violated certain important terms of your financing contract.  Default can occur not only when you fall behind on payments, but can also occur for other reasons.  Many contracts also define default as having occurred when the vehicle is damaged and not repaired, when the insurance on the vehicle lapses, when the vehicle is impounded, and if you file for bankruptcy.  Your contract may also have additional or different definitions for what triggers a “default”.

Some consumers believe that turning in a vehicle voluntarily means that it was never repossessed.  Unfortunately, even a voluntary surrender of the vehicle is usually classified as a repo.  However, there may be certain advantages to a voluntary repo: you can avoid towing charges and certain other fees that the finance company ordinarily tries to recover later, and you may be able to control when and where the vehicle is turned in.  That way, you do not have to worry about your personal belongings that were left in the vehicle at the time of the repo, since they often mysteriously “disappear” during a night-time repo.

Contrary to what is sometimes shown on television, the repo man (or repo woman) cannot repossess your vehicle if it would involve a “breach of the peace“.  Obviously, injuring you physically qualifies as a breach of the peace.  However, other circumstances can also create a breach of the peace, such as breaking into your garage, damaging your fence or gate to get access to the vehicle, and even threats of bodily harm.  Remember, the lender or finance company who hired the repo man is usually responsible for all of their actions during the repossession.

Ordinarily, you will receive at least one (and possibly many more) notices of default before your vehicle is repossessed.  However, you are also entitled to receive additional notices.  For example, you are entitled to receive notice of when, where and how your reposssessed vehicle will be sold.  After the sale, you are entitled to an accounting.  This means that the lender must itemize how much you owed before the sale, how much they received for the sale, an itemization of the fees and costs associated with the sale, and the amount you still owe following all that.  This is normally referred to as the post-sale notice of deficiency.

If the finance company files a lawsuit in Florida seeking to recover for a deficiency, they have to comply with all the applicable Florida laws and court rules for a debt collection action.  They also have to comply with the laws that contain additional safeguards for the consumer.  For example, if properly challenged, they must prove that every aspect of the sale of your repossessed vehicle was “commercially reasonable“.  This may be difficult for the lender to prove if they do not bring the correct witnesses and documents to the trial.

Unfortunately, we know of numerous instances where the lender or the repo agent failed to follow Florida law in repossessing the vehicle, and then later when suing on a deficiency.  You can click here for a link to one such repo case that we have handled.

You can help protect your rights by keeping copies of all documents you receive relating to the vehicle and its repossession.  It is also important to save all the envelopes used to mail you your notices.  Finally, keep detailed notes about all aspects of the repossession, including every person you spoke with, and the date and time of those conversations.

If you believe your rights were violated during a repo, or if you need help defending against a repo deficiency action, please do not hesitate to call us on our toll-free number (1-888-834-5297) or send us an email.  As an experienced Florida consumer attorney and former automotive engineer, I would be honored to assist you.  As always, there is no charge to you for my initial consultation.  I handle such cases throughout Central Florida, from Flagler County to Polk County, from Brevard County to Lake County.

Let’s say you bought a car from a dealer, but it turns out the car is a piece of junk, rather than the reliable, high quality car they promised.  Or the dealer misrepresented the condition of the car or its mileage.  Perhaps the financing is not on the same terms you were promised.  Maybe the car broke down right away and doesn’t even run anymore.  You call the dealer, and they refuse to help; maybe they even try to sell you a second, more expensive car.  You call the finance company to which you are making payments, but they tell you to take it up with the dealer, and that it’s none of their business.  Meanwhile, they insist that you keep making your monthly payments because “we have a contract”.  You’re stuck . . . Or are you?

In many car sales, the Federal Trade Commission regulations require the contract to contain what lawyers call the Anti-Holder Clause.  This clause can be the key to winning your case.

This clause of the contract states the finance company to whom you are making payments is subject to all the claims and defenses you had against the dealer who sold you the car.  It doesn’t matter if it’s a well-known dealer chain or a “Buy Here, Pay Here” local car lot.  It doesn’t matter whether you are dealing with a car company’s finance company or a bank or a credit union.  If your contract contains this clause, they are bound by it.

What this means is that if you had any claims against the dealer, you can also bring those claims against the bank, finance company or credit union.  If the car dealer engaged in fraud or misrepresentation, deceptive or unfair acts or practices, breached a warranty, engaged in odometer rollback or violated any other state or federal laws, you can sue either the car dealer, the finance company to whom you are making payments, or both.  Depending on the facts, it may also allow you to stop paying the finance company or credit union as a result of the dealer’s violation of law.  However, that bank, finance company or credit union can then potentially recover their money back from the dealer.

The moral of the story is don’t give up.  Just because the dealer and the finance company tell you that you have no rights, it’s not necessarily true.  As an experienced auto fraud attorney and consumer protection lawyer, I would be honored to review your paperwork and to advise you of your rights during a free initial consultation.  Just call the Rudnitsky Law Firm on our toll-free number, 1-888-834-5297, or send us an email through our contact form.

Some of our clients have been sued by debt collectors and initially tried to defend their lawsuits by themselves. Sometimes, they try this first because they know that the debt is not theirs, and that the debt collector has sued the wrong person. Sometimes, it’s because they have reached a settlement agreement before the lawsuit, and don’t understand why they are now being sued after reaching a deal with a credit card company. The common characteristic they share is a belief that because the lawsuit is unfair and wrong, the debt collector will do the right thing and simply drop their lawsuit. A consumer that is proceeding without a lawyer is said to be proceeding pro se or in pro per (short for in propria persona), which are Latin phrases meaning the person is representing himself or herself.

Unfortunately, many debt collectors, especially credit card companies, simply don’t care and just want to get more money from you. The consumer then gets frustrated as the lawsuit continues to move toward trial and the debt collection lawsuit still isn’t dismissed. Sometimes it’s not dismissed because the consumer does not know the court rules and procedures that are required to have the lawsuit dismissed. Sometimes it’s not dismissed because the debt collector simply fabricates evidence to avoid dismissal.

Some Florida consumer attorneys will refuse to accept clients whose cases have already been pending for some time. They are worried that they have lost the opportunity to control the litigation. However, we don’t automatically give up on such cases. We don’t believe a Florida consumer gives up their right to be represented by an experienced Florida debt lawyer in their credit card lawsuit simply because they did the right thing and tried to work it out on their own first. That is why we routinely represent such consumers. In fact, we have even accepted representation literally days before a scheduled trial in a credit card lawsuit.

If you are involved in such a lawsuit, please don’t give up and don’t get frustrated. As an experienced Florida consumer protection attorney, I would be honored if you selected me to pursue justice on your behalf. In fact, if the credit card company or other debt collector sued you for a debt that is not yours, or sued you after you had already settled the debt with them, you may be able to sue them back by filing a counterclaim or a separate lawsuit under the Fair Debt Collection Practices Act (FDCPA). Call us toll-free at 1-888-834-5297, contact us through our web contact form, or even fax your informaiton to us, and find out about your rights. Remember, our initial consultations are always free.

Debt collectors are well known for filing improper lawsuits.  Sometimes they sue the wrong person, either due to identity theft or due to sloppy record-keeping.  Sometimes they negotiate a settlement with the person who owes them money, and then sue anyway.  Sometimes they sue for charges that were never authorized or approved.  Sometimes they file a lawsuit on a debt that is past its Statute of Limitations.

In each of these cases, you may have not just a defense to their lawsuit, but you may be able to sue them back.  Suing the Plaintiff who has sued you is known as filing a Counterclaim, which is simply a counter-lawsuit against the person or company who has sued you.  Sometimes a Counterclaim is one of the only ways you can get their attention that you are serious when you say they violated your rights.

If you prevail on your Counterclaim, the plaintiff may actually have to pay you money damages.  They may also be responsible for paying for your attorney fees.

Examples of Counterclaims you may be able to assert under the right facts include breach of contract / breach of settlement agreement, fraud or misrepresentation, violation of the Florida Consumer Collection Practices Act (FCCPA), violation of the federal Fair Debt Collection Practices Act (FDCPA), and others.  In some of these cases, you may also be able to sue the lawyers who filed the debt collection lawsuit against you.

As a Florida consumer attorney, I would be honored to help you determine whether you have a Counterclaim against the debt collector or its lawyers.  For a free consultation, please feel free to call us toll-free at 1-888-834-5297, send us an inquiry through our website contact form or fax us your information.

There are several ways in which you can defend a lawsuit filed against you by a credit card company, debt collector, bank, auto finance company and other plaintiffs.  One of those ways is by proving an affirmative defense.

An affirmative defense is different than just defending your lawsuit.  In order for a plaintiff to win a lawsuit against you, they have to prove each of the “elements” of their claim.  For example, in a breach of contract lawsuit, they have to prove the existence of a contract with you (which includes offer, acceptance and valid consideration), that you breached the contract, and that they suffered damages as a result of the breach.  In a traditional defense, you can simply point out that they failed to prove one of those elements with admissible evidence and win your lawsuit.  Click here for a more detailed description of how I, as an experienced Florida debt attorney, can defend your debt collection lawsuit.

But what do you do if the credit card company or other plaintiff can prove its case?  Does that mean you automatically lose and will have a judgment entered against you?  The answer is not necessarily, if you can prove a valid affirmative defense.

An affirmative defense is a defense that essentially provides a reason why you should win even if the plaintiff in a lawsuit can prove its case.  If you prove an affirmative defense, you can win the lawsuit or reduce the amount of money the plaintiff can recover.

One such affirmative defense is the Statute of Limitations.  A Statute of Limitations is a state law that prohibits a plaintiff from winning a lawsuit if they simply wait too long to enforce their rights.  For example, the Statute of Limitations for a breach of contract in Florida can be four years.  If they wait more than four years from the breach of contract, you can assert the affirmative defense of Statute of Limitations and have their lawsuit dismissed.  Click here for an example of a credit card lawsuit against our client that violated the statute of limitations and was dismissed.

Another affirmative defense can arise if you reached a settlement agreement with the credit card company and fully performed your obligations under that agreement.  If they then sue you for the original amount owed before the settlement, you can assert the affirmative defense of Accord and Satisfaction.  That simply means you reached a new agreement that you fully complied with, and they are not entitled to renege on their deal.

Examples of other potential affirmative defenses are:

• Plaintiff’s failure to attach the contract or other necessary paperwork to the lawsuit complaint
• Plaintiff’s failure to comply with court rules regarding how they must present their claim and describe
• An out-of-state Plaintiff’s failure to post the necessary bond with the clerk of the court
• Being sued on credit card charges that you did not authorize: if you did not authorize the charges (and are not a co-signer for someone else’s account), you are not responsible for the charges
• Being sued for late fees, over limit charges, collection fees, attorney fees, court costs and other fees and charges, unless those charges are explicitly allowed under the contract or Florida law

There are also many other affirmative defenses, depending on the type of case.  The key point, however, is that you can lose your affirmative defenses if you do not assert them properly and at the right time.  In some cases, these affirmative defenses can also allow you to bring a counterclaim against the debt collector or its attorneys.  In those cases, you may be able to not only win your case, but recover money from the other side.

You should consult with a knowledgeable Florida consumer attorney who is experienced in defending debt collection lawsuits.  If you are located in Central Florida (including Seminole County, Orange County, Lake County, Brevard County, Volusia County or Flagler County), we would be honored if you would call us on our toll-free number, 1-888-834-5297 for a free consultation.  That one call can mean the difference between winning and losing your lawsuit.  Of course, you can also contact us by using our convenient website contact form or by faxing us.  As a Florida debt lawyer, I am committed to pursuing justice on your behalf.