I received an alias summons from the law firm Evans & Mullinix, specifically attorney Jo Ann Butaud and Stephanie R. Tucker Muir, representing the Plaintiff, Nebraska Furniture Mart (NFM). Attached was a Petition on Accounts, pursuant to K.S.A. 61, alleging I owe NFM money for default in payments. On the Summons it was hereby notifying that the action commenced against me was to be held on the court at a specific time and date. The first I heard from Evans & Mullinix on the lawsuit or their attempt to collect the debt was from the summons, 14 days before the court date, violating the Fair Debt Collectors Practice Act (FDCPA). The FDCPA defines a debt collector as
803. Definitions [15 USC 1692a]The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
Additionally, Under the FDCPA, you are allowed to validate this debt, and they must show you proof that you owe the debt. The specific section of the FDCPA:
809. Validation of debts [15 USC 1692g]
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
I was never given that opportunity.
Lastly, in the original petition they claim the unpaid principal balance is $3,497.35. Then in the last paragraph of the same petition they pray for a total of $4170.75, that includes interest at 18% per annum. Plus the petition requests pre and post judgment interest, late charges and promotional interest, if any, for reasonable attorney fees and any other costs that have been expended. They are demanding a $450 unexplained additional cost that results in a 50% interest rate, per annum. This is strictly prohibited by the FDCPA:
807. False or misleading representations [15 USC 1962e]A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
2) The false representation of —
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
The majority of people choose not to show up to court to defend themselves against a major department stores lawyers, and it is difficult for the layperson to decode a petition, let alone, go through a complete judicial process. Few people are aware of the FDCPA and the validation period to dispute the claim. If I didnt show up to court, a default judgment would have been taken against me with no less than 50% interest. I imagine I am not the only one that didnt receive a validation letter, resulting in hidden fees being claimed by default judgment.
Please respond if you have been sued, are being sued or if they have received a default judgment against you and you have different amounts being requested on the summons that you never noticed previously. If Evans & Mullinix tack on an additonal $450 on the judgment for each person that doesn't show up to court resulting in a default judgement, they end up making a lot of additional money. The majority of people don't show up to court because they don't know their rights. Check the amount they claim you owe and verify they haven't added additional fees. Many of the fees could be a violation of the FDCPA.
Also if the first time you knew about Evans & Mullinix, PA attempt to collect a debt was the actual summons to court, this is in violation of the FDCPA. They have to give you a thirty day period to dispute the debt.
If you aren't sure, post and ask anyways. How many others are victim to this scam? In this time of economic crisis, the people have to stick together and fight the one's preying on the unknowing. This isn't about owing or not owing a debt. It's about following the law and knowing your rights. Many debt collectors break the law without most people knowing it. They often inflate the amount originally owed. Then they garnish the wages for years for an amount that is 3 times the original amount owed. This is illegal, yet they do it for years to thousands of people because the people think they can't win in a court of law.
Is there anyone else out there???
0 comments