Category: Collections

Maybe. Even if you owe money, it is illegal for a creditor to harass you through the mail or over the phone. The Fair Debt Collection Practices Act (FDCPA) makes certain conduct by creditors illegal. Any of the following tactics are illegal: 

•Communicating to third parties, such as your relatives, employers, friends, or neighbors, about a debt unless you or a court have given the collector permission to do so. Collectors are only allowed to contact attorneys, contract creditors, credit reporting agencies, co-signers, and your spouse. If creditors speak to anyone else about you, it can only be to request your address or telephone number so they can contact you. 
•Communicating with you at unusual or inconvenient times or places. The times 8:00am to 9:00pm (in your time zone) are generally considered to be convenient unless the creditor is aware you work at night. You can dictate what times are convenient by sending a letter to the debt collector limiting the days and times that telephone calls are convenient. You must state that all other times are inconvenient. (Ex. Please call only Monday through Friday between 1pm and 5pm all other days and times are inconvenient) All communications should be sent certified mail return receipt requested and a copy of the letter kept for your records.  
•Contacting you at work if the collector should know that the employer prohibits personal calls, or contacting you at other inconvenient places, such as a friend’s house or the hospital. 
•Contacting you if you are represented by a lawyer, unless the lawyer gives permission for the communication or fails to respond to the collector’s attempts to contact him or her. 
•Contacting you after you write a letter asking the collector to cease communications. This type of letter is often called a cease letter. After receiving the letter, the collector is only allowed to acknowledge the letter and to notify you about actions the creditor or collector may take. 
•If the debt collector communicates with you using an automated dialing system, computer or electronic devise, such communication may violate West Virginia law. 
•Using obscene, derogatory, or insulting remarks. 
•Publishing your name in a newspaper. 
•Telephoning you repeatedly and frequently or at times known to be inconvenient or annoying to you. (You will have to tell a collector that certain days or times are not convenient. Otherwise calls that come in after 8am and before 9pm are typically deemed reasonable times) 
•Telephoning without disclosing the collector’s identity. 
•Making communications that intimidate, harass, or abuse you, such as a threat to conduct a neighborhood investigation of you or telling you that you should not have children if you cannot afford them. 
•Making false, misleading, or deceptive representations in collecting debts, such as pretending that letters carry legal authority. 
•Falsely representing the character, amount, or legal status of a debt, or of services rendered or compensation owed.  
•Falsely stating or implying a lawyer’s involvement. 
•Threatening arrest or loss of child custody or benefits. 
•Stating that nonpayment will result in arrest, garnishment, or seizure of property or wages, unless such actions are lawful, and unless the creditor or the collector fully intends to take such action.  
•Threatening to take actions that are illegal or that are not intended. 
•Using any false representation or other deception to collect or to attempt to collect any debt or to obtain information about you. 
•Failing to disclose in communications that the collector is attempting to collect a debt. 
•The failure to clearly disclose the name and full business address of the person to whom the claim has been assigned for collection, or to whom the claim is owed, at the time of making any demand for money. 
•Using unfair or unconscionable means to collect debts. 
•Collecting fees or charges unless expressly authorized by the agreement creating the debt and permitted by law. 
•Any representation that an existing obligation of the consumer may be increased by the addition of attorney’s fees, investigation fees, service fees or any other fees or charges when in fact such fees or charges may not legally be added to the existing obligation 
•Depositing post-dated checks before their date.  
•Causing expense to another party while concealing the purpose of the communication by, for example, making collect telephone calls and sending collect telegrams. 
•Threatening repossession without the legal right to do so, or if the collector has no present intent to do so. 
•Creating the false impression that the collector is an affiliate or agent of the government. 
•Placing a phone call to you or a third party that gives the impression that the call is “urgent” or “an emergency.”  

•Using any communication, language, or symbols on envelopes or postcards that indicate that the sender is in the debt-collection business. 
•Threatening the garnishment of any wages of any person or the taking of other action requiring judicial sanction, without informing the consumer that there must be in effect a judicial order permitting such garnishment or such other action before it can be taken. 
•Failure to mail a written receipt for each payment made on a consumer account or loan. 
•Failure to provide a written statement of the amount of payments made in the last 12 months to a consumer who requests such a statement in writing. 

It is helpful to document each time the creditor illegally contacts you. Keep a pen and paper next to the phone to record all telephone contacts. Make sure to get the name of the person calling, the name and address of the company collecting the debt, the name of the original creditor, account number and amount of debt. Also, save any harassing messages left on an answering machine. If you believe that a creditor has violated the Fair Debt Collection Practices Act by engaging in any of the conduct listed above contact a lawyer to find out how to exercise your rights.  

For more information, see: Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (2015); W. Va. Code §§ 46A-2-114, 46A-2-124, 46A-2-127, 46A-2-129, 61-3C-14a (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2006).

When a person seeks assistance from a doctor, the patient and doctor enter into either an oral or written contract. The contract states that a person will pay for the services rendered by the doctor on behalf of the patient. As long as the patient has an outstanding debt with the doctor, the doctor, as a creditor, may request payment until the full amount is paid. If a doctor does not receive payment, notice must be given that the payment is delinquent. If payment is not received 10 days after the notice is given, the doctor has the right to take action against the patient. The doctor has 5 years in the case of an oral contract, and 10 years in the case of a written contract, to pursue a lawsuit to recover money owed. If the doctor does not take action through a judicial remedy during the doctor’s right to acquire the debt, the doctors right to recover that money is lost. 

A doctor may not, however, use “unfair or unconscionable means” to collect or attempt to collect the outstanding debt according to the Consumer Credit Protection Act. Violations include the following: 

•When a doctor seeks or obtains any written statement or acknowledgment in any form that specifies that a consumer’s obligation is one incurred for necessaries of life where the original obligation was not in fact incurred for such necessaries; 
•When a doctor seeks or obtains any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing the nature and consequences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation; 
•When the doctor collects or attempts to collect from the consumer all or any part of the debt collector’s fee or charge for services rendered; 
•When the doctor collects or attempts to collect any interest or other charge fee or expense incidental to the principal obligation unless such interest or incidental fee, charge, or expense is expressly authorized by the agreement creating the obligation and by statute; and 
•When the doctor makes any communication with a patient whenever it appears that the patient is represented by an attorney and the attorney’s name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication. 

For more information, see: 15 U.S.C.S. §1692c and W. Va. Code § 46A-2-128 (2015).

Probably not. The general rule is that you are not responsible for the debts of your spouse. However, there is an exception. You are responsible for debts incurred during reasonable and necessary medical treatment of your spouse.  

Spouses are also jointly responsible for debts whenever they both receive benefit from the goods or services. You cannot escape a debt just because it is in your spouse’s name. For instance, your spouse may have a credit card in his or her name only. If you charge something on that card for yourself, then you are both responsible for the bill. 

However, you are not responsible for personal debts that your spouse incurs if you receive no benefit from them. For example, say your spouse buys some golf clubs on credit at a sports store. If the account is in your spouse’s name only, unless you also use the clubs, you are not legally responsible to pay this debt. 

This question is important in estate proceedings. If your spouse dies with independent, non-necessary debts, you are not responsible for those bills. If there is no property in your spouse’s estate to pay those bills, then the creditor cannot simply collect from you. However, depending on how you and your spouse own property, the property may be subject to the debt. At any rate, there is no personal obligation that you must pay the debt. 

If a creditor is trying to get you to pay your spouse’s debts, be certain you have the obligation to pay them before you turn over any money. 

For more information, see: W. Va. Code § 48-29-303 (2015); Philippi Planning Mill, Co. v. Cross et al., 75 W.Va. 303, 83 S.E. 1004 (1914); Larzo v. Swift & Co., 129 W.Va. 436, 40 S.E.2d 811 (1946); Stewart v. Stewart, 177 W.Va. 253, 351 S.E.2d 439 (1986).

Probably, yes. Normally you are not liable for the personal debts of your spouse. However, exceptions to this general rule are that you are liable for reasonable and necessary medical treatment, and for debts whenever you both benefitted from the goods or services. 

When a person dies, all of that person’s property goes into his or her estate. Then all of the debts of the deceased must be paid out of the estate, to the extent there are assets in the estate to cover them. After the debts are paid, the remaining property is distributed according to the will, if there is one, or according to intestate succession. If you and your spouse own all your property jointly, then the property may go directly to you when your spouse dies. If this happens, then the property generally does not have to be used to pay the debts. 

But if your spouse dies with medical bills, the hospital or doctor can make you pay if your spouse’s estate cannot. Even though you did not sign any agreement to pay, you may still be held responsible. 

If you cannot afford to pay the medical bills there may be other ways to get them covered. Your spouse may have qualified for Medicaid. Even if your spouse is deceased, Medicaid can look back for a period of 90 days to see if your spouse was eligible at his or her death. You may be able to obtain Medicaid coverage for your spouse after he or she has died. Be advised that, because of the limited look-back period, you should promptly apply for Medicaid at your local DHHR office.  

Also, hospitals grant charity care to some patients who cannot pay for their medical expenses. However, a condition of charity care is that you must have been denied Medicaid. 

For more information, see: W. Va. Code § 48-29-303 (2015).

When you co-sign a loan, you and the borrower are equally responsible for the loan payments. Being a co-signer is a serious responsibility. You may receive no benefits from the loan, but you could still be required to pay for it. West Virginia law requires the lender to inform you of this great responsibility in writing and you must sign it before the loan is granted.  

You should never sign a document without reading and understanding it first. If you do not understand something in a document you are given to sign, ask questions and get answers from someone looking out for your best interests until you understand. The law will almost always assume that when you signed the document, you understood the contents. 

After a loan payment is missed, the lender must give you notice and a time to cure. To cure a loan payment means that you bring the missed payment up to date. The notice requirement means that the lender must give you time to make the payment before he or she can report adversely about your credit record or take further collection action. The lender must give written notice of the default (failure to pay) when the payment is at least five days late. You then have 10 days from the time of the notice to pay the amount plus any late charges or service fees. 

If you cure in time, everything is back to normal as if the payment were never missed. However, you can only miss payments and then cure without a penalty two times. If the borrower has defaulted three times, even if he cures on the first two, the lender has the right to proceed against him. 

In addition, the notice need only be sent to your last known address. If you move, and the lender does not know your new address, you may never get the notice and may have no idea the loan is in default. Therefore, it is wise to inform the lender of any change in address, even if you are just the co-signer. 

For more information, see: 15 U.S.C. §§ 1601-1615 (2015); W. Va. Code §§ 46A-2-104 to -106 (2015).

Generally, no. Attachment occurs when a creditor or other person to whom you owe money is entitled to take a portion of your property, usually money, to settle your debt. 

Social Security 

Social Security benefits are not generally accessible by your creditors. Veterans’ benefits are also not generally accessible by your creditors. However, these benefits can be garnished to enforce alimony and/or child support payments, and the federal government may garnish Social Security and Veterans’ benefits to satisfy a tax debt. 

Even though Social Security and Veterans’ benefits are not generally accessible by your creditors, problems can arise if your government benefit checks are deposited into an account that also contains money from other sources. If the other income sources are not exempt from garnishment, creditors may improperly seize your benefits because it is difficult to distinguish your benefits from your other income. Also, if you share a bank account with someone else, your benefits may be at risk. If your benefits are seized, you will have to show that the garnishment was illegal and that the funds were protected. It may be wise to open a separate bank account for your government benefits to guard against improper seizure. 

Private Pensions 

Federal law also protects certain types of private pensions from creditors. To qualify for federal protection, a pension must conform to the guidelines in the Employee Retirement Income Security Act (ERISA). These pensions are referred to as Qualified Plans. Even under ERISA, however, you are still allowed to voluntarily use up to 10% of the benefits to pay a debt. This means that you can use up to 10% of the pension to pay a debt if you want, but a creditor cannot attach a Qualified Plan pension without your approval. 

In addition, private pensions may be used to fulfill a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that allocates a portion of your benefits to a family member, such as a spouse, former spouse, child, or other dependent. The order gives the family member a right to take part or all of the pension benefit. Usually QDROs are used for alimony or child support purposes. 

Finally, the federal government may garnish private pension plans to collect taxes due. 

For more information, see: 29 U.S.C. §§ 1056(d)(1)-(3) (2015); 38 U.S.C. § 5301(a) (2015); 42 U.S.C. § 407 (2015); 42 U.S.C. § 659(a) (2014); Simmons v. Simmons, 175 W. Va. 3, 330 S.E.2d 325, 327 n.1 (1985) (questioned on other grounds); Philpott v. Essex County Welfare Board, 409 U.S. 413, 34 L.Ed.2d 608, 93 S.Ct. 590 (1973) (superseded by statute as stated in Rodriquez v. Perales, 86 N.Y.2d 361, 657 N.E.2d 247, 633 N.Y.S.2d 252 (1995)); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005).