Auto Deficiency
Your car or truck has been repossessed. And you’ve been sued to collect the balance due on your loan. If the dealer gets a judgment against you, most likely your wages or bank account will be garnished to pay for a vehicle you no longer have. If this is you, you may be down, but you are not out.
We can help. We do more than just defend lawsuits to collect the balance of a vehicle loan, we look for grounds to bring counterclaims for violations of the law and your statutory rights. We fight back, using:
Truth in Lending Act (“TILA”):
Under TILA, there is no statute of limitations for bringing a counterclaim to an auto-deficiency lawsuit for violations of TILA. Under such a counterclaim, you can recover damages up to the amount sought by the creditor, which could completely wipe out the debt. We will study your loan documents to look for violations of TILA that we can use and press to your advantage.
Kentucky Consumer Protection Act (“KCPA”):
The KCPA can be a powerful tool to fight back against an auto-deficiency lawsuit. The KCPA is broadly written to cover the fertile minds of schemers and scammers who are always looking for new ways to cheat and steal from consumers. We will ask you questions and investigate the sale of the vehicle at issue to see if you too might have a claim under the KCPA.
Uniform Commercial Code (“UCC”):
Under Kentucky’s UCC, a secured creditor, like the creditor or car dealer suing you, has to dispose of the vehicle at issue in a commercially reasonable manner in order to recover a deficiency balance from you, i.e. collect a money judgment against you. And the creditor or dealer has the burden of proof on the issue. This makes the sale of the vehicle after repossession the most vulnerable element of the creditor’s or dealer’s lawsuit. This will be key to our counterattack to lawsuit filed against you.
Arbitration:
Often, car financing documents include an arbitration clause. If so, this clause was put in place specifically to deny you your right in court and to prevent you from bringing or joining a class action, which often is the only meaningful legal avenues to get a creditor’s or dealer’s attention and make them pay for their violations of the law. But you can use the arbitration clause to force the creditor or dealer to dismiss the lawsuit against you and file the claim as an arbitration, which costs substantially more than filing a lawsuit. This move may get rid of the debt and negative information from your credit report all together or may give you considerable leverage in terms of settling the debt for less than the amount you were sued for.
Fair Credit Reporting Act (“FCRA”):
Most likely, the creditor or dealer suing you to collect the auto-deficiency balance is also reporting the debt on your credit report. The credit information may be demonstrably wrong, which can be proven by the very documents that the creditor or dealer filed in the lawsuit against you. If so, we can set up a FCRA claim against the creditor or dealer.
Fair Debt Collection Practices Act (“FDCPA”):
The plaintiff suing you may have bought your defaulted loan for pennies on the dollar and is coming after you for the full amount claimed due. If so, the plaintiff could be subject to the FDCPA, which is a strict-liability statute. We are well versed in the FDCPA and, if it applies, can wield it as powerful tool in your favor.
Cost:
You may be asking how much with this cost me? Or have already decided you cannot afford legal representation. Quality and dedicated representation may cost a lot less than you think. Depending on where you reside in the Commonwealth, we offer flat-fee rates ranging for $600 to $1,000 for representation through the summary judgment stage of litigation. This means we will file an answer to the complaint or moved to dismiss the complaint, serve discovery, answer discovery, file motions to compel arbitration—where appropriate, respond to motions for summary judgment, and file motions for summary judgment. We accept payment plans.
Also, if we can develop counterclaims or other claims on your behalf, we may be able to force the creditor or dealer suing you to pay our fees and costs. And in some cases, we may be able to recover damages and make them put into your pocket.
If you have been sued to collect a balance due and owing on a car or truck loan, please call or email us today. The initial consultation is completely free.
