30-minute Q&A with Consumer Attorney John Watts
30-minute Q&A with Consumer Attorney John Watts
What questions do you have?
First question:
Do you do credit repair?
The short answer is no. At least, I don’t do what people think of as “credit repair.”
Normally, credit repair means you pay me money to prepare some letters for you, and then we’ll see if we can get rid of some negative information.
At my firm, if we agree to represent you, we look at your credit reports, and there’s no charge for that. We identify the errors, and then we prepare a dispute letter and send that to our clients.
They review it, approve it, and that gets sent out to the credit bureaus.
The credit bureaus either fix or delete the inaccurate or missing information. If they don’t, we sue them.
When I say the credit bureaus, I’m talking about Equifax, Experian, TransUnion, and Innovis – those types of companies.
We also potentially may sue the furnishers, who provide the information to the bureaus.
Capital One, Bank of America, Midland Funding, and Portfolio Recovery – those types of companies – are the ones who furnish or supply the information to the credit bureaus.
So, that’s what we do.
Normally, we do this for folks who live in Alabama and Tennessee because I practice in Alabama and I partner with a lawyer in Tennessee.
We don’t charge anything for examining your credit reports and preparing the letters, we can’t dispute things on your credit report that are accurate, and we don’t make up any bogus identity theft affidavits as some people do.
What we do is simply identify the true actual errors that we find in your real credit reports.
If you have negative accounts, it’s almost certain that there are errors in your reports.
Erika Kane says, “What should you do when the bill collector’s attorney hasn’t submitted their bill of particulars yet to the defendant and court? It’s way past time for them to submit. Can I move to dismiss?”
One thing I’ll say about debt defense is that it is really specific to your state.
For example, in Alabama where I practice, we don’t use the expression “bill of particulars.” That’s going to be another state.
Different states have different terminology for the steps in the process. For example, when a lawsuit is filed, that’s called a complaint.
Some states refer to it as a civil warrant, some call it a petition or a lawsuit.
So, there are different names, and within those different names, there are different deadlines and rules.
You mentioned that there’s a deadline for them to submit their bill of particulars, and if they haven’t done that, it may be that the judge would throw the case out for that, or the judge just may issue an order telling them to do it.
Or it may be that if they don’t submit this, that’s going to hurt them when they actually go to trial. I just don’t know what your particular state is and what the rules are, but I would definitely look at that, and think through the strategy.
- Is it better to raise this now or to raise it at trial?
- Is there a local rule?
- Does your judge have specific rules for submitting evidence or a list of witnesses?
A lot of judges say you have to submit what’s called a witness and exhibit list, and if you don’t submit a list of your witnesses or exhibits, you can’t bring them up at trial.
Some judges have that in writing, but they never enforce it. Other judges always enforce it.
You really need to know what your state requires, how your county or local court handles it, and if possible, how does your particular judge view this?
It’s worth spending a little bit of time watching if the court proceedings are open to the public to see what your judge will do. You can also check with some lawyers who practice consumer law there, and ask them what this judge normally does.
Imperial Kleen says, “Good morning, I have 2 default judgements with 2 debt buying collection companies. What are my options to have these removed from my credit report?”
A few things to consider:
- Usually, the judgments do not show up anymore on your credit
I’m not going to say that they never do, but at least not on the reports from the major credit bureaus: Equifax, Experian, TransUnion, and Innovis. We typically don’t see judgments there.
- If the judgment is reporting, then you just want to make sure that it’s reporting accurately, and the only way to remove that judgment would be to show their inaccuracies or to go back to the court if you’re allowed to under your rules, and get that default judgment undone.
Typically, that’s going to happen if you weren’t properly served. You have to figure out what “being served” means in your state.
- If they have default judgments against you, and they have their accounts on your credit report, how do you get rid of those?
One way is by paying them a settlement. They typically will take their account off of your credit report. Portfolio Recovery and Midland will do that sometimes, but again, you want to get that confirmed with them. Don’t just assume or guess about it. Make sure before you settle that they will do that.
- The other option to get the accounts off of your credit reports is to look for errors. Is the reporting accurate? Is it complete?
Here’s an example:
Let’s say the judgment from yesterday was $2,500. When they update your credit report, it shows it at $3,500. Well, wait a minute.
There’s a judgment saying $2.500, so Midland or Portfolio, why are you showing that it’s $3,500?
That looks like an inaccuracy to me, so maybe I dispute that and say, A judge has decided I only owe $2,500. Why do you have $3,500 on here?
You want to look for the errors on the credit reports and dispute them to see if it will get the bureaus to take off that information.
If they won’t, then you have the basis to sue the credit bureaus and/or the debt collectors.
T.P. says, “If debt collectors do not have an affidavit, is this a good thing? A defense?”
I’m assuming you mean in a collection lawsuit, and that’s going to depend again on your state.
Does your state require an affidavit? We can flip that around.
Does your state allow an affidavit?
From my perspective, I want to get to trial, and I do not want the judge to accept an affidavit.
I want them to bring a real person in flesh and blood into the courtroom so I can cross-examine them.
I can’t cross-examine a piece of paper.
So, some states require affidavits with the lawsuit, when it’s filed. Others allow affidavits at trial. Some don’t.
So, you need to know for your state, for your court, do they allow it? Do they not allow it?
Is it up to the judge?
Is it up to you to object?
You really have to know those rules.
If they don’t have an affidavit, and obviously, if they don’t bring a witness and they don’t bring an affidavit, it’s kind of hard to prove their case unless they can prove their case through questioning you.
Brandon wants to know, “Do you assist with identity theft?”
Yes. If you have true identity theft, meaning someone has taken your identity, opened up an account – generally, it’s a credit card – but it could be a personal loan, auto loan, we’ve even seen mortgages through identity theft, and you didn’t have any part in that, we can help you with that.
We have to make sure that you didn’t participate in it.
If your ex-spouse took out this credit card, purchased an around-the-world trip, and you agreed to participate in it? That’s not identity theft.
Assuming that there’s none of that, then yes, we certainly can help with that.
Feel free to reach out to my firm at Alabamaconsumer.com. We’ll help you in any way that we can.
“What are the most common errors on a credit report?”
In general, I would say that the two types of errors that the courts look for is, “Is there just flat-out wrong information? It’s just absolutely wrong. Or, is it incomplete?” Is data missing?
So, let’s think about what just “flat-out wrong” is.
Let’s say that I’ve got a Capital One debt, and I owe $4,000, I charged it off, and I settled that in October of 2021.
I paid them $2,500, and they sent me a letter saying, “You paid off your account in October of 2021. You owe us no more money.”
Then in November, they put the balance as $1,500. That’s just flat-out wrong! I don’t owe them any money in November.
They put a charge-off notation in November. How could I be charged off when I paid it off?
How can I be late if I owe zero? If there’s nothing I owe, how can I possibly be late after I pay it off?
Then, in December, they’ll report it as a zero balance, but they still report me at charge-off.
Well, how can I be charged off when I owe zero? That’s just flat-out wrong.
Missing information usually occurs in the payment history. There are often just gaps in there.
All of the reports are a little bit different, but they all have a grid or chart that is the payment history.
Were you current this month?
Were you 30, 60, 90, 120, 150, 180 charged off, what were you?
A lot of times you’ll see that there’s just missing data there. So, the chart is incomplete.
So, we look for incomplete information and information that is just flat-out wrong.
We also look for inconsistent things where part of the report says this, but another part contradicts it.
It might be that they’re both wrong, but both pieces of information can’t be right if they contradict themselves.
When will you continue the FCRA law breakdown? It is really helpful for newbies to travel the credit repair process the right way.
Yeah, that’s on my list. We’ve just been kind of slammed in trials, but I’ll get back to where we just put the text up of the law and go through it.
I will say this: The FCRA is a lengthy law, so I’ve had some concerns about getting too bogged down in it where it loses the impact, but I may just hit some of the important sections.
We have sections 1681e(b).
That’s the one that says they must have reasonable procedures to ensure maximum possible accuracy (talking about the credit bureaus), so that’s important.
Then 1681i, the “i” is for investigation, which explains what you can dispute. It explains why you can dispute things and what you are allowed to dispute. Then we’ll cover some other sections.
So, I think that’s what I’ll do rather than trying to cover all of it.
If you print it out, it’s 100 pages or more. So, I’ll just hit some of the major sections, and if there’s interest in particular sections, let me know, and I’ll add that to our list.
What do you do when the credit bureaus won’t remove a charged-off account even though the original creditor has asked them to stop furnishing the debt, and I have sent in a copy of the letter stating the account is now fraudulent?
If it’s a fraudulent account, and you’ve shown that to Capital One, but Capital One is still on your credit report, one thing you can do is dispute it through the credit bureaus.
Make sure it’s through the credit bureaus (Experian, TransUnion, Equifax, Innovis).
Provide them with the police report, and the identity theft affidavit, and it sounds like you have a letter from the original creditor saying, “We instructed the credit bureaus to no longer report this information.”
In this example, Capital One is the furnisher. They provide the information to the credit bureau.
They can certainly instruct the credit bureau to no longer report it.
But have you ever heard that expression, “The left hand doesn’t know what the right hand is doing?”
It may be that Capital One is saying to the credit bureaus, “Don’t report this,” but then every month they keep slamming the data into the credit bureaus.
The credit bureaus are like, “What do you want us to do here?”
So, I always want to make sure that, particularly if it’s identity theft or a fraudulent account, we go directly to the credit bureaus and dispute that.
It’s very foolish when the credit bureaus do not just immediately or within a few days get rid of that.
Everybody is a potential victim of identity theft. Can you imagine being in a trial, and there are 6 jurors sitting there in a federal court sitting there?
They’ll be thinking, “Huh, that could be me. If I get a police report and an identity theft affidavit, they’re not going to take it off?”
Now obviously, we have to be truthful about the identity theft affidavit and the police report.
We’re the good guys, we’re dealing with the bad guys. We do everything above board and honestly. Let them be the ones that are lying.
If you’ve done that, and they won’t get rid of the identity theft, that’s a significant case.
If you’ve done those steps or you have questions about them, reach out to me through alabamaconsumer.com, and I’ll help you in any way that I can.
Ericka says, I’m in Virginia, and I want to submit my grounds of defense and mention the lack of the plaintiff’s bill of particulars as part of my defense.
Again, I just don’t know how the rules are there in Virginia.
Go to consumeradvocates.org. and you’ll see at the top, “find an attorney.”
You can pick your state, maybe even your city, and select the type of lawyer that you’re looking for.
Not all consumer lawyers are in this group, but a good number are, so it might be helpful for you to take a look there to get someone to help you.
Alberto says, “Help! Some attorneys are concerned with the new ruling Transunion LLC vs. Ramirez (June 25 2021). I don’t understand. What does an FDCPA violation have to do with that ruling?”
Great question. Let’s look at some history here.
In the TransUnion vs. Ramirez case, TransUnion was wrongfully putting people on basically like a terrorist watch list.
So, they weren’t real terrorists on a watch list, but TransUnion was reporting that they were.
Obviously pretty upsetting, right?
So, there were lawsuits, it ended up going to trial, plaintiffs won, it ultimately went all the way to the US Supreme Court.
I’m going to try to keep this from being too technical, but you do have to understand this if you’re involved in lawsuits.
The US Supreme Court has a concept called “standing.”
Standing limits participation in lawsuits by asking if the person bringing the lawsuit has enough of cause to “stand” before the court.
If you do, then it’s like the doors of the federal courthouse open for you. If you don’t, then they stay shut.
So, the Supreme Court ultimately ruled that some of the plaintiffs had a legitimate injury, so it was okay for them to go to trial, but others did not, so they should’ve been thrown out of the case.
The reason why attorneys are concerned about this, even under an FDCPA Fair Debt Collections Practices Act (the Ramirez case was a FCRA Fair Credit Reporting Act case) is because determining if someone has standing was kind of a loose interpretation.
We’ve had courts that look at identical evidence and come to opposite conclusions.
So, the requirements for “standing” are changing and evolving. That’s why people are concerned about it.
My solution, which we’ve been doing for many years, is we file everything in state court, and if they leave it in state court, that’s fabulous. We love being in Alabama state court.
But if they have a right to, they remove it to federal court. Then if they bring up this issue of standing, we just say, “So, you agree to send this back to state court?”
And they go, “Oh, I forgot we removed it, never mind. We’re not mentioning it,” because they don’t want to go back to state court.
Remember what I said standing is? It’s, “Can you open the doors of the courthouse?”
Well remember, if you file it in state court, you’re not the one asking the doors of the federal courthouse to be open. The defendant is.
The defendant goes knocking on the doors and says, “Hey, this plaintiff has standing. Open the doors!”
So, that’s their burden to prove.
When they fuss and say, “You don’t have standing, John!” I can reply, “Well, ok. Let’s go back to state court. “
And then they remember that by bringing us to this court, they already proved that I had standing.
So, that’s the concern. Some people don’t like being in state court.
Also, some lawyers are licensed in multiple federal courts but not necessarily in the state courts.
There’s also just this mentality among consumer lawyers that everything has to be filed in federal court.
My background is in personal injury, so we kind of start with everything in state court.
Now, I’m totally comfortable in either place, but I don’t file anything directly in federal court anymore because I don’t want the judge to change the rules in the middle of the game.
Or if there’s a new opinion from the Supreme Court or some other court where they say, “We thought you had standing, but now we’re throwing you on the street.”
That would be bad.
So, I file everything in state court.
You might talk to the attorneys you referenced and ask if they can file these cases in state court.
Cosmon Martinez writes, “Can you remove a late payment if the account is already closed?”
The question is going to be:
- Is it accurate?
- Is it truthful?
- Is it correct?
- Is there missing information on the account?
Just because an account is closed on June 2019, you can still be late or charged off the next month.
So, they can close an account and still report you as being late, particularly being charged off.
Charged-off happens every month so long as they have that account, so we’re really looking at, “Are there some errors? Is there any missing or incomplete information, and does that give us a basis to dispute that account?”
So, that is really why I say one of the most important things when you’re trying to get rid of errors, is you first have to be able to identify the errors. We have some webinars on YouTube to help you better understand this.
Let’s just take a charged-off account for example.
There are normally a dozen errors or more on a charged-off account.
I’m not saying that every account is that way, but in almost every account, there are lots and lots of errors.
So, there may be a basis to get things fixed.
If it’s negative, but it’s 100% accurate and complete, then we can’t complain about that.
What we can complain about is when they don’t fix it, they don’t delete it, and they leave errors there.
That’s when we get to invite them to a party in court where they are the ones sweating.
D Hart says, “Zoom trial by the judge after 2 years of waiting on trial.”
Yeah, some states are really slow and others are fast.
I have a friend in Los Angeles, Mike Cardoza, and he told me that if you’re sued by a debt collector, you may not go to trial in Los Angeles for a year or more.
Typically, in Alabama, when you file your answer to the lawsuit, you may be on trial within 3 weeks.
So, Tennessee may be more in between those two extremes. It just depends on where you are and who is your particular judge.
Some judges have gotten really behind.
Also, one thing to keep in mind is that some judges also do criminal cases, civil cases, and possibly divorce-type cases, and there’s been a delay because of Covid on these criminal cases.
That’s really unfair to the criminal defendants and frankly, to the victims.
You want to get to trial as quickly as you can, or at least “speedily” is what the constitution says.
So, they kind of have to prioritize those criminal cases over civil cases.
Then also, some judges have been out sick, and they may be out for a stretch.
I don’t know why your particular judge, your particular case is taking so long, but those may be some of the reasons why.
Always feel free to call us at 205-879-2447 or fill out our contact form.
Thanks!