Atlas Law Firm

I am being sued by Gurstel & Chargo

What to do if you are being sued by Gurstel & Chargo

If you receive a demand for payment from a debt collector, like Gurstel & Chargo you must not ignore it.  If you do, you will likely lose any chance you have to reduce the debt, challenge the collection or protect your legal rights.You may be able to sue Gurstel & Chargo and recover damages or there are other options such as bankruptcy or debt consolidation to consider.

Remember that if you don’t respond to a collector’s demand for payment in some way, you might end up with a court judgment against you for the full amount of the claim. This is bad and can lead to the need for bankruptcy.If a court judgment is entered against you, it will be included in your credit record and in future credit reports. Also, you may be forced to pay the judgment debt by an execution on your earnings (garnishment) or on other property you may own, either now or at a later time.

You Can Collect Damages from Debt Collectors

Debt collectors (including both original creditors and debt collection agencies) are subject to laws that establish standards of fair conduct. Creditors and debt collection agencies are permitted to take reasonable steps to enforce and collect payment of debts. All too often nowadays, collection agencies are not following the laws when it comes to collection of a debt. Collection Agencies like Gurstel & Chargo must follow the Federal Fair Debt Collection Practices Act (The “FDCPA”).

The FDCPA is a consumer protection statute which protects you as a consumer from harassing, oppressive or abusive debt collection tactics by a debt collector in the course of collecting a consumer debt. You have a right to be treated with truth, fairness, dignity, and respect in all your dealings with a debt collector. If you’re not, you have a right to sue them.

The FDCPA only governs the actions of a debt collectors and collection agencies, not the original creditor and this is a very important distinction. What does that mean? It means that, as far as the FDCPA is concerned, a creditor is the original entity which loaned money to a consumer. It is not a collection agency. The definition of a debt collector under the FDCPA is different from that of the original creditor.

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 orasserted to be owed or due another. So when a collection agency is assigned, or has purchased, your debt, they are NOT the creditor. They are the debt collector and the actions they take are all governed by the FDCPA. Even if the collection agency is a lawyer or law firm, the lawyer or law firm is still considered a collector and must adhere to the FDCPA.

When does a creditor violate the FDCPA?

  • Creditors cannot inaccurately report your credit history
  • If you dispute a debt, the collection agency fails to report it disputed to the credit bureaus
  • If collection agencies do not validate your debt yet continue to pursue collection activity (file for judgments, call or write you) or report you to credit bureaus
  • If collection agencies continue to call you after you have sent them a cease and desist letter
  • If collection agencies: - Cash a post-dated check before the date on the check - Cost you money by making you accept collect calls or COD mail - Take or threaten to take any personal property without a judgment
  • If a collector calls you after 9 PM at night or before 8 AM in the morning
  • If a collector calls you at your place of employment if the debt collector knows or has reason to know that your employer prohibits the consumer from receiving such communication.
  • If a collector calls any third part about your debt like friends, neighbors, relatives, etc.
  • However they can contact your attorney, a consumer reporting agency, the creditor, the attorney of the creditor, or the attorney of the debt collector.
  • The debt collection agency cannot use any kind of harassment or abuse
  • Collector cannot claim to garnish your wages, seize property or have you arrested
  • If a debt collector sues you, they must sue you in a county in which you lived when you signed the original contract for the debt or where you live at the time when they file the lawsuit
  • Neither debt collectors nor creditors cannot pull your credit file without permissible purpose
  • Credit bureaus must not to refuse to correct information after being provided proof
  • If a credit bureaus reinserts a removed item from your credit report without notifying you in writing within 5 business days.
  • If a credit bureaus fails to respond to your written disputes within 30 days (a 15 day extension may be granted if they receive information from the creditor within the first 30 days)
  • Collection Agency can NOT be BOTH purchaser and 'assignee' of a debt, it's one or the other!
  • If the collector misrepresents themselves or the debt are actionable regardless of intent
  • If creditors or collection agencies, and credit bureaus try and “Re-age” your account by
  • updating the date of last activity on your credit report in the hopes of keeping negative information on your account longer

If Gurstel & Chargo or any other debt collector has done this to you, you have the right to collect damages from them and we can help. If Messerli and Kraemer have made any of the violations listed above, you have the right to sue them under the FDCPA and collect the following damages:

Civil liability

A debt collector that violates the FDCPA is liable to such person in an amount equal to the sum of

(1) any actual damage sustained by such person as a result of such failure; or

(2) in the case of any action by an individual, statutory damages $1,000 and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.

What if Gurstel & Chargo is Validly Suing on a Debt?

There are other options. These include bankruptcy, debt consolidation or negotiation.

Bankruptcy provides a “fresh start” financially for a debtor.The stigma and credit issues associates with a bankruptcy are very different than what is portrayed on the internet and by creditors. A Chapter 7 bankruptcy allows a debtor to wipe out almost all of his debt (taxes and school loan debt is an important exception) and start over financially. Bankruptcy filers typically have access to credit almost immediately after filing bankruptcy because of aggressive marketing by credit card companies right now.

Additionally, typically bankruptcy filings, while public information, are not readily available outside of a credit report and are not routinely searched for employment typical. A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial "fresh start" from burdensome debts. The Supreme Court made this point about the purpose of the bankruptcy law in a 1934 decision:

This goal is accomplished through the bankruptcy discharge, which releases debtors from personal liability from specific debts and prohibits creditors from ever taking any action against the debtor to collect those debts. This publication describes the bankruptcy discharge in a question and answer format, discussing the timing of the discharge, the scope of the discharge (what debts are discharged and what debts are not discharged), objections to discharge, and

revocation of the discharge. It also describes what a debtor can do if a creditor attempts to collect a discharged debt after the bankruptcy case is concluded.

There are many companies out there offering "Debt Consolidation" which is also known as Bill Consolidation, Bill Management, Debt Consolidation Loan, Debt Management Plan, Credit Counseling, Credit management and Debt Elimination. Debt Consolidation will take 4- 8 YEARS to complete and they will charge you a fee of up to 18%. While you may get a reduction in your total debt, you will need to pay taxes on the forgiven debt as if it was income, thus reducing your total debt forgiveness. Many make many claims for Debt Negotiation/Consolidation make it seem almost too good to be true.

There are some downsides to debt negotiation. First, your credit will be awful while you're in the program. Second, if the creditor never agrees to settle (which is very rare) then you end up with bad credit, and in worse shape than where you were before. To offset the bad credit problem, there are some settlement companies who include a credit repair service (which you pay for, of course) which will remove the negative items which were caused by the program. And, since all your debts will be paid off by program completion, no new negative items will appear.

Working with a credit counselor can be viewed as an alternative to filing a petition in bankruptcy. However, if your debts are too large to manage, bankruptcy may be the only workable solution. Since bankruptcy also has disadvantages, it should be used only after you consider all of the negative factors, including its limited benefits (it only discharges unsecured debts), its costs (attorneys’ and filing fees), and its adverse effect on your future credit standing (you may not be eligible for credit, or you may be eligible for only high-cost credit). If your debts can be paid off within several years, you may also consider a wage earner plan, which has fewer negative factors since your creditor

Conclusion

Debt collectors like Gurstel & Chargo must be taken seriously and promptly. Waiting and hoping that the problem will go away will only lead to more problems, a possible judgment and potentially having the debt collector take part of your paycheck or funds from your bank account through Garnishment.

Garnishment is a legal process by which a creditor tries to get money from your bank account or paycheck. Before the creditor can garnish wages or a bank account, the creditor must get a judgment against you. The SUMMONS you received is the first step in the garnishment process. Once you are served with the summons and complaint, you have 20 days to file an Answer. You must file your answer with the court. You have to pay the court to file an answer.

All is not lost, you can fight back using the options listed above.

Call me today for a free no obligation consultation at