What Actually Is Debt Defense?


When someone falls behind on a will, oftentimes the process is that first the lender will attempt to collect the debt through communications, such as phone calls and letters. But if the lender feels that they haven’t satisfied themselves in those efforts, then they may go to the court system to attempt to collect the debt. Debt defense is a strategy to use the court system’s tools to help protect a consumer’s rights.

What Types Of Debt Do You Typically Deal With?

Credit card debt is probably the most prominent type of debt that’s collected upon, but it’s not uncommon to see a variety of other debts, including medical debts, business loans, or vehicle deficiency. If a vehicle is either turned in or repossessed, then many times the lender will seek to collect on whatever balance is owed under the loan.

What Is A Judgement? What Is A Default Judgement?

After a debt collector has filed a lawsuit to collect on the debt, if the consumer doesn’t do anything to respond to the lawsuit, then the collector can get what’s called a “Default.” This will ultimately lead to a default judgment. Whether a judgment is obtained by default, or whether it’s obtained even after the consumer has responded and the creditor has adequately proven its case, that judgment is what allows or empowers the collector to be able to obtain special remedies to get paid under the judgment. This can be things like wage garnishment, a levy on a vehicle, meaning of the forced sale of the vehicle, the forced sale of homestead property, or to take money out of an individual’s bank account.

What Is Wage Garnishment?

Wage garnishment is when a collector seeks to satisfy the judgment that they’re owed by taking money directly out of the individual’s paycheck. Normally, in order for a creditor to impose a wage garnishment, they first need to get a judgment. The exception to that rule is with some federally backed student loans, they do not need to get a judgment first. Wage garnishments are capped at 25% of gross wages. It’s important to be aware that it is the gross income they consider, which a lot of times can be close to 50% of someone’s net wages. There can be an exception to that rule for folks that qualify for certain protections, such as the head of household protection.

What Is The Statute Of Limitations For Debt Related Cases?

The statute of limitations in Florida for agreements that in writing is 5 years from the date of the breach, which usually is the date of the last payment. That’s the length of time that a company can seek to file a lawsuit based upon whatever the debt is. Most people are of the understanding that a debt totally disappears when the statute of limitations has expired, and then they’ll get a letter in the mail and wonder why they are being collected upon. Even when a statute of limitations expires, that doesn’t make the debt disappear. It just limits the creditor from being able to file a new lawsuit.

Nevertheless, if a creditor is attempting to collect on an old debt, and they don’t tell you that they can’t sue on it, then that can be deceptive. In some cases, consumers might actually have the right to be able to sue the debt collector if the debt is too old.

Should Someone Try To Work Out A Payment Plan Or Just Seek The Services Of An Attorney?

Typically the best first step would be for a consumer to consult with an attorney. Sometimes a workout plan is the best option, but in other instances, starting a workout plan can bring a statute of limitations back to life when the debt may have been too old for the debt collector to collect upon. In other instances, the debt that a consumer’s being sued on may be one of many, and it might be that a workout plan isn’t the right option for them. At least in our firm, we offer a complimentary half-hour consultation where we review the consumer’s full debt portfolio, and offer recommendations on what we believe to be the best course of action. There is no cost for a consumer to evaluate what option is going to be the right fit for them.

Does Someone Actually Have To Go To Court In These Types Of Cases?

Typically, the law favors those who show up in court. If someone does not attend court, or does not have an attorney who is going to court for them, in most cases a default judgment will be entered and the consumer will lose whatever rights they may have to defend the collection case. It’s important to be aware that a consumer shouldn’t assume they don’t have rights, even if they do owe the debt. It is the creditor’s burden to prove the balance that’s owed, and oftentimes they cannot meet that burden. The system does favor those who participate.

Why Is A Debt Defense Attorney Preferable To A Debt Management Or Consolidation Company?

I am cautious about the strategies that are typically incorporated into debt consolidation. Some consolidation companies encourage someone who is up-to-date to fall behind and default on the loans in the hopes that debt can be reduced, which is not a guaranteed outcome. A debt defense attorney is a bit of a different situation, because usually you’re working on one debt in particular, and that debt is already behind. It’s more of a question of whether the consumer could be responsible for the full balance under the debt, or whether there is a legal defense that may allow the consumer to reduce or to totally eliminate the obligation.

Additional Information About Debt Defense In Florida

The one thing that I want to underscore is debt buyer lawsuits. In a lot of instances, companies that consumers don’t recognize, and have never done business with, sue them. There is a very large industry of debt collectors who may have purchased certain rights from the debt originator, and so these companies will file lawsuits against the debtor. Midland Funding and Portfolio Recovery Associates are two of the more prominent companies. Oftentimes, consumers sued by debt buyers have even broader rights than they otherwise would in debt defense cases, because the debt buyer has to prove that they have actually acquired the rights to be able to pursue the consumer.

In those instances, in particular, consumers really should protect their rights against what otherwise would likely result in a default judgment.

For more information on Debt Defense In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 248-0074 today.

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Clearwater: (727) 248-0074 | Tampa: (813) 225-3111