Legal Question in Credit and Debt Law in Massachusetts
I was summons to court by an attorney who was acting as a debt collector for an auto loan I had defaulted on a few years back. At the time, I had made a payment plan and I fell behind on this plan due to health issues and becoming a single mother and just not having the money. Now, a few years later I received a written letter requesting for contact regarding the payments form this attorney. Coinciding I received my tax returns and have been spending the last year really focusing on my budget and working on paying off debts such as student loans, I did call and left a voicemail requesting a statement for the amount (with having the intention of paying this off with my tax refund). I received the statement and it was much higher than I expected due to thousands of dollars worth of accrued interest and unfortunately I am not able to pay this amount at this time, I just don't have it. I am wondering if because this was a few years back, if there is a possibility of this attorney taking me back to court and having the amount taken directly from my paycheck? The execution date listed on this statement I received is 3/7/2008. While I know either way it is still a debt, I am just wondering if someone could give me advice based on Massachusetts law if I can be sued or taken to court for this with wages garnished. I have been really trying to pay off debts and improve my credit score (this is not listed on any credit report) and so I am reading advice on not to initiate or sign an agreement as the time limitation is almost up. Please help!
3 Answers from Attorneys
They can take you to court, and if they win, they can garnish wages or seize property for as long as 20 years.
Under MA law you have the right within 30 days of their letter to request IN WRITING several documents establishing the debt, including the debt amount (google 940 CMR 7.08 for a list of what you are entitled to). If interest has been added, they must show that they had the right to collect the amount they did. Also, if this is several years old, it's very likely that the attorney is not working for the original creditor but for an "assignee" of the account - in which case you do not have to pay them unless they can prove they own the account (to do that, they need the Bill of Assignment AND the Exhibit or Schedule of Accounts showing that your account was one of the accounts purchased).
Most creditors who come after debtors years afterwards simply don't have the documents MA law requires. You should never take a creditor's word for how much you owe or who you owe it to, if they are not the original creditor you did business with. Demand documents, do it immediately, and do it in writing via certified mail, and keep a copy for your records.
If they don't send the documents they are prohibited from any further attempts to collect. If they do send documents, check to see if everything you requested was sent, if it was not, and they keep collecting, a 93A Demand letter is appropriate. If they did send everything, take the time to go over it with a fine tooth comb, you may mistakes in the accounting. Also, any fees or costs charged must be authorized in the Contract (which they must also send), and look for contractual language entitling the creditor to interest, either a certain rate or if it refers to some other document, that document should also be included. If the account was assigned, check whether the contract allowed the contract allows the same interest rate post-default and post-assignment.
You mentioned an Execution in your question - this suggests that they already have a judgment against you. If that's the case, then the six-year deadline is no longer an issue, and yes, one of the methods they could use to collect upon the judgment would be a wage garnishment. To initiate something like this, they would need to bring a new complaint in court, based on the original judgment, which would list you and your employer. There would also be a hearing scheduled where a judge will hear from all parties involved, and either approve or deny the garnishment.
Defending auto repossession cases is part of my practice. Depending a what stage in the proceedings your case is I may be able to help. Feel free to give a call for a no cost telephone consultation.
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