Information on Ohio's Consumer Laws from Attorney Daniel Myers, Myers Law, LLC (ADVERTISMENT ONLY)
By Daniel Myers
There are many surprises in life. One of the worst surprises many of my clients face is when they discover a judgment has been taken against them years ago. Whether it is caused by a move, a post office mistake, or other reasons, sometimes people are never made aware that debt collectors are suing them. Other times, due to either a sense of helplessness or embarrassment, some consumers will allow a debt collector to get a judgment and then ignore it, hoping that it will go away.
It rarely goes away, although the judgment can become what is called a “dormant” judgment. If an attorney attempts to collect on a “dormant” judgment again you or someone you know, and that judgment was originally a debt that was owed for personal, family, or household goods/services, then that attorney likely violated the Federal Fair Debt Collection Practices Act, and the victim of that violation may be entitled to damages.
Let’s look at one example that I have seen many times recently, and which has caused debt collectors to pay thousands of dollars in damages and legal fees to clients of mine. Years ago, a business that sells things to consumers sued a customer for non-payment. That customer lost the case (either because he or she never showed up, or because the judge agreed with the business), and a judgment was entered against the customer for $5,000 plus interest that accrues every year that the judgment is unpaid. Six years go by with no action being taken on the judgment, and the customer forgets about the judgment. Then, early one morning, when the consumer goes to withdraw money from a bank account, he notices the account has been wiped out. After asking the bank what happened, the customer discovers that an attorney has garnished his bank account to collect on that old judgment. “How can this be legal,” the customer asks. Well, it may not be legal, at all.
Under Ohio law (R.C. 2329.07 for those keeping track), a judgment generally goes dormant after five years. If no action is taken to execute on that judgment (such as garnishments, bank attachments, or judgment liens), or if executions are attempted, but five years goes by from the last attempted execution, the judgment cannot be collected upon or executed upon until it is revived–it has gone dormant. During that dormancy period, no interest can accrue on the judgment.
While it is very easy for a creditor or debt collector to revive a judgment (it is almost automatic), many fail to ever request that revival, or pay the costs associated with it, either due to oversight or wanting to avoid paying court costs to do so. I have seen numerous debt collection law firms in and around Cleveland fail or refuse to revive a judgment, and then attempt to garnish a consumer’s accounts. This is usually combined with adding too much interest to the amount of the debt (because no interest should be added from the dormancy period). By doing these things, attorneys and other debt collectors are likely violating the Federal Fair Debt Collection Practices Act in at least two ways.
First, the garnishment paperwork or bank attachment request usually misrepresents the amount of the debt. By adding too much interest to the debt amount, lawyers and other debt collectors are stating a false amount due. This violates the Fair Debt Collection Practices Act.
Second, the garnishment attempt or bank attachment is an attempt to collect on a debt that is not legally owed at that moment, and that execution is not legally authorized at that time. Taking acts or threatening to take acts that are illegal or not permitted violates the Fair Debt Collection Practices Act.
Depending on the specific circumstances, there may be additional violations of the law. Even one violation entitles the consumer to damages and attorney fees. The debt will not go away because of this illegal conduct, but it does give a consumer a lot of leverage to negotiate the debt down or away entirely, or even to get money back for the harm caused. It is critical to speak with a knowledgeable consumer law attorney to see what options are best for you. The time in which you have to act is very limited–you only have one year from the date the federal debt collection law was violated to make a claim in court. If you miss that deadline, it’s too late.