Author Topic: How to deal with Hunt and Henriques  (Read 2437 times)

0 Members and 1 Guest are viewing this topic.

petersen559

  • Valued Member
  • Posts: 3
How to deal with Hunt and Henriques
« on: November 08, 2012 05:25:00 PM »
I originally had a credit card with Capital One and fell behind in 2006.  My last payment was in July 2006. I owed them around $6500.  Capital One charged off the account in February 2007. 

In August 2009, I found out that Hunt and Henriques had obtained a default clerks judgement against me for around $15000.  I had never been served a court summons.   That was the first I had heard of it since dealing with Capital One in 2006.  Then in September 2009,  Hunt and Henriques got a wage garnishment against me.  With the help of a paralegal, I filed a motion to vacate the judgement for improper service.  The motion was granted and the judgement was vacated.  Hunt and Henriques did not even show up to court. 

In September 2012, I got a notice from my employer that my wages were being garnished for the same judgement from 2009.  The judgement had been vacated so I couldn't believe it.  So this time I hired an attorney.  She has since got the garnishment stopped, but not after they took around $1000 out of my check.  I still have not been returned the money. 

My question is how could they get a writ of execution and wage garnishment on a judgement that had been vacated in 2009?  Is there any way that I can sue them for this?  My attorney says no, but I'm starting to feel she may be incompetent.  She says I can not even recover her fees from Hunt and Henriques.  I would think I could since they caused all of this by illegally obtaining a writ of execution on a vacated judgement.

Can they still come after me on this case from 2009?  If they had to file a new case it would be past the statute of limitations. 

Please help me.  I don't know what to do.  I don't know if I should stay with my attorney, or get a new one. 

Jerry

btw, this is in California

BigSal

  • Valued Member
  • Posts: 773
Re: How to deal with Hunt and Henriques
« Reply #1 on: November 08, 2012 05:30:39 PM »
I originally had a credit card with Capital One and fell behind in 2006.  My last payment was in July 2006. I owed them around $6500.  Capital One charged off the account in February 2007. 

In August 2009, I found out that Hunt and Henriques had obtained a default clerks judgement against me for around $15000.  I had never been served a court summons.   That was the first I had heard of it since dealing with Capital One in 2006.  Then in September 2009,  Hunt and Henriques got a wage garnishment against me.  With the help of a paralegal, I filed a motion to vacate the judgement for improper service.  The motion was granted and the judgement was vacated.  Hunt and Henriques did not even show up to court. 

In September 2012, I got a notice from my employer that my wages were being garnished for the same judgement from 2009.  The judgement had been vacated so I couldn't believe it.  So this time I hired an attorney.  She has since got the garnishment stopped, but not after they took around $1000 out of my check.  I still have not been returned the money. 

My question is how could they get a writ of execution and wage garnishment on a judgement that had been vacated in 2009?  Is there any way that I can sue them for this?  My attorney says no, but I'm starting to feel she may be incompetent.  She says I can not even recover her fees from Hunt and Henriques.  I would think I could since they caused all of this by illegally obtaining a writ of execution on a vacated judgement.

Can they still come after me on this case from 2009?  If they had to file a new case it would be past the statute of limitations. 

Please help me.  I don't know what to do.  I don't know if I should stay with my attorney, or get a new one. 

Jerry

btw, this is in California

Is the cap one atty governed by the FDCPA?
If you need legal advice, go see a lawyer.

NotBonJovi

  • Valued Member
  • Posts: 1407
  • No. I'm really NOT dead.
Re: How to deal with Hunt and Henriques
« Reply #2 on: November 08, 2012 05:36:58 PM »
You must start reading. Have you read anything on this site yet?

The Flyingifr Method, which is linked in my signature, is a good start. Learn what the FDCPA is, what it is about, and to whom it applies.

This site is about learning to defend yourself - time to start learning. We can't do this for you, we aren't lawyers.
Helpful Links:
Abbreviations / Search Whole Board / The Flyingifr Method

There are some that push you to fail, but some who push you to succeed. Few realize or know the difference.

KFMAN

  • Valued Member
  • Posts: 5026
Re: How to deal with Hunt and Henriques
« Reply #3 on: November 08, 2012 05:56:20 PM »
I'm sorry if I posted something that doesn't belong on here.  I have done a lot of reading on this site over the last 2 months, but I don't feel competent enough to try to do things myself.  I'm not really asking for you to do the work for me , just for advice if I should seek another attorney.  The whole reason I hired an attorney is because I figured that was the best bet.   If my question doesn't belong on here, please let me know and I will delete it.
I would ask your attorney.

NotBonJovi

  • Valued Member
  • Posts: 1407
  • No. I'm really NOT dead.
Re: How to deal with Hunt and Henriques
« Reply #4 on: November 08, 2012 06:09:04 PM »
I am sorry you are in this situation, and am saddened to hear you have enough confidence to learn at least the basics. I understand it is hard, and there is a lot of info to absorb because we have ALL been there.

However, you can't tell us you do not feel "competent" enough to learn the basics, tell us to advise you...then claim you are not asking us to do the work for you.

Because you are.

We can't advise you legally about anything. I certainly wouldn't feel comfortable telling you to dump a lawyer, especially when you clearly are not comfortable doing it on your own.
Helpful Links:
Abbreviations / Search Whole Board / The Flyingifr Method

There are some that push you to fail, but some who push you to succeed. Few realize or know the difference.

KFMAN

  • Valued Member
  • Posts: 5026
Re: How to deal with Hunt and Henriques
« Reply #5 on: November 08, 2012 06:21:58 PM »
I originally had a credit card with Capital One and fell behind in 2006.  My last payment was in July 2006. I owed them around $6500.  Capital One charged off the account in February 2007. 

In August 2009, I found out that Hunt and Henriques had obtained a default clerks judgement against me for around $15000.  I had never been served a court summons.   That was the first I had heard of it since dealing with Capital One in 2006.  Then in September 2009,  Hunt and Henriques got a wage garnishment against me.  With the help of a paralegal, I filed a motion to vacate the judgement for improper service.  The motion was granted and the judgement was vacated.  Hunt and Henriques did not even show up to court. 

In September 2012, I got a notice from my employer that my wages were being garnished for the same judgement from 2009.  The judgement had been vacated so I couldn't believe it.  So this time I hired an attorney.  She has since got the garnishment stopped, but not after they took around $1000 out of my check.  I still have not been returned the money. 

My question is how could they get a writ of execution and wage garnishment on a judgement that had been vacated in 2009?  Is there any way that I can sue them for this?  My attorney says no, but I'm starting to feel she may be incompetent.  She says I can not even recover her fees from Hunt and Henriques.  I would think I could since they caused all of this by illegally obtaining a writ of execution on a vacated judgement.

Can they still come after me on this case from 2009?  If they had to file a new case it would be past the statute of limitations. 

Please help me.  I don't know what to do.  I don't know if I should stay with my attorney, or get a new one. 

Jerry

btw, this is in California
Did you ask these questions to your attorney?  If I were you I would study FDCPA Easy and then your local state consumer laws.

petersen559

  • Valued Member
  • Posts: 3
Re: How to deal with Hunt and Henriques
« Reply #6 on: November 08, 2012 08:34:59 PM »
I'm not saying I'm not competent enough to learn the basics.  I have learned the basics.  I just felt more comfortable using an attorney.  And I have not been able to find any information on this site or anywhere else on a plaintiff getting a writ of execution and wage garnishment on a judgement that has been vacated 3 years ago.  My attorney says there is nothing we can do about it, but I think otherwise.  This is my question.  I'm not trying to get you to do the work for me, just point me in the right direction as I can't find one instance of this ever happening to anybody else. 

mrjaggers

  • Valued Member
  • Posts: 367
Re: How to deal with Hunt and Henriques
« Reply #7 on: November 08, 2012 09:16:25 PM »
Is H&H the owner of the debt or are they representing a separate owner?

Let's assume that H&H is the owner.  If they are attorneys, and from the context of your post it appears that they are, they are going to be exempt from the FDCPA and CA's Rosenthal Act, both of which only apply to "debt collectors" and the definition of "debt collector" specficially exempts out attorneys.

So, what are you left with?  You do have some arrows in your quiver.

1.  You have a claim for "money had and received."  This is a common law claim that essentially states, "Someone has my money and they are not entitled to it and I want it back."

2.  You file a Rule 11 motion for sanctions against H&H.  H&H executed a fraudulent judgment.  Under Rule 11, every filing a lawyer makes to the court must be truthful.  This filing was not and you can prove it.  You can move the court to impose sanctions against them.

3.  You can file an ethical complaint against them with the State Bar of California.

4.  You can contact your state's Attorney General's office Consumer Protection office and talk to someone and see what they say.

5.  Any combination or all of the above.

There may be some arrows that I haven't thought of - but those are the ones I can think of off the top of my head.

petersen559

  • Valued Member
  • Posts: 3
Re: How to deal with Hunt and Henriques
« Reply #8 on: November 08, 2012 09:35:42 PM »
On the bottom of letters I have received from them, it say "This firm is a debt collector.  The purpose of this letter is to attempt to collect a debt and any information obtained may be used for that purpose."

Does this mean that they own the debt?  The court case says the plaintiff is Capital One with H&H as the attorneys.

Thanks for your help

KFMAN

  • Valued Member
  • Posts: 5026
Re: How to deal with Hunt and Henriques
« Reply #9 on: November 08, 2012 09:46:19 PM »
Is H&H the owner of the debt or are they representing a separate owner?

Let's assume that H&H is the owner.  If they are attorneys, and from the context of your post it appears that they are, they are going to be exempt from the FDCPA and CA's Rosenthal Act, both of which only apply to "debt collectors" and the definition of "debt collector" specficially exempts out attorneys.

So, what are you left with?  You do have some arrows in your quiver.

1.  You have a claim for "money had and received."  This is a common law claim that essentially states, "Someone has my money and they are not entitled to it and I want it back."

2.  You file a Rule 11 motion for sanctions against H&H.  H&H executed a fraudulent judgment.  Under Rule 11, every filing a lawyer makes to the court must be truthful.  This filing was not and you can prove it.  You can move the court to impose sanctions against them.

3.  You can file an ethical complaint against them with the State Bar of California.

4.  You can contact your state's Attorney General's office Consumer Protection office and talk to someone and see what they say.

5.  Any combination or all of the above.

There may be some arrows that I haven't thought of - but those are the ones I can think of off the top of my head.
Wouldn't this firm be a JDB or CA under FDCPA?

znb

  • Valued Member
  • Posts: 471
Re: How to deal with Hunt and Henriques
« Reply #10 on: November 08, 2012 09:46:40 PM »
Let's assume that H&H is the owner.  If they are attorneys, and from the context of your post it appears that they are, they are going to be exempt from the FDCPA and CA's Rosenthal Act, both of which only apply to "debt collectors" and the definition of "debt collector" specficially exempts out attorneys.

The FDCPA does not exempt all attorneys. It exempts those attorneys who do not do debt collection on a regular basis.

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.pdf

The FDCPA does appear to apply to H&H as debt collector attorneys, as their entire lawfirm deals almost entirely, if not entirely, in debt collection....at least according to H&H's website.

http://www.hunthenriques.com/

Or am I missing something somewhere?
« Last Edit: November 08, 2012 10:05:27 PM by znb »
I'm not an attorney, and I have no legal background. Please don't delude yourself into taking my ramblings as legal advice.

My only super power is the ability to read and comprehend information quickly. I wanted it to be something cool like flying or bending spoons with my mind, but I took the hand I was dealt and am making the best of it. ;)

mrjaggers

  • Valued Member
  • Posts: 367
Re: How to deal with Hunt and Henriques
« Reply #11 on: November 08, 2012 10:43:42 PM »
There is some confusion in this area, but generally, no, attorneys are not considered debt collectors.  In the 4th  Cir., there is a case -- Scott v. Jones, 964 F.2d 314 (4th Cir. 1992) -- that held that a lawfirm whose principal business was debt collection is a "debt collector" under the FDCPA. 

However, I think this is the minority view.  And it's not the view of the FTC.  The FTC Staff Guidance given to the FTC attorneys gives the direction that no attorneys are subject to the FDCPA, and that advice has been relied upon by several circuits.

Unforunately for the OP, CA is in the 9th Cir., not the 4th.  So the law firm will not be subject to the FDCPA.  I was thinking that the CA Rosenthal Act might offer relief, but it expressly excludes attorneys.

Sorry, I don't mean to quibble details.  You brought up a good point.

howucantoo

  • Valued Member
  • Posts: 4181
Re: How to deal with Hunt and Henriques
« Reply #12 on: November 09, 2012 12:52:39 AM »
I respectfully disagree, The FDCPA Act defines a debt collector as:

"Any person who uses any instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another." Heintz v. Jenkins", 514 U.S. 291, U.S. Sup. Ct. (1995). This includes attorneys.

I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

znb

  • Valued Member
  • Posts: 471
Re: How to deal with Hunt and Henriques
« Reply #13 on: November 09, 2012 01:54:05 AM »
However, I think this is the minority view.  And it's not the view of the FTC.  The FTC Staff Guidance given to the FTC attorneys gives the direction that no attorneys are subject to the FDCPA, and that advice has been relied upon by several circuits.

Not trying to beat a dead horse here, but I too must respectfully disagree. (I'm also not trying to quibble. Just trying to clarify. :))

Maybe I'm still missing something, but the link I provided is from the FTC. It's entitled "FTC Facts for Consumers", dated February 2009.

In the third paragraph of page one, the FTC pamphlet specifically states that lawyers who collect debts on a regular basis are debt collectors and subject to FDCPA.  This seems to fit H&H perfectly.

Does the FTC pamphlet, provided to consumers, contradict FTC Staff Guidance given to FTC attorneys? If so, why would that be? (I don't know what other circuits, or Rosenthal, have said about this, but it seems clear from the FTC's consumer pamphlet that debt collection attorneys/firms are not exempt from FDCPA).

Just trying to grasp why debt collection attorneys/firms, especially the likes of H&H, wouldn't be subject to the FDCPA in Cali (or elsewhere for that matter) per the FTC's own published guidelines to consumers.

Has something changed since 2009?
« Last Edit: November 09, 2012 02:19:06 AM by znb »
I'm not an attorney, and I have no legal background. Please don't delude yourself into taking my ramblings as legal advice.

My only super power is the ability to read and comprehend information quickly. I wanted it to be something cool like flying or bending spoons with my mind, but I took the hand I was dealt and am making the best of it. ;)

Shadowbuddha

  • Valued Member
  • Posts: 810
Re: How to deal with Hunt and Henriques
« Reply #14 on: November 09, 2012 11:39:46 PM »
H & H are debt collectors under the FDCPA. 

Under Rosenthal it is murkier as Rosenthal specifically exempts attorneys and counselors at law, but there are a few federal cases saying that exemption doesn't extend to law firms.  State decisions on the matter haven't conclusively stated law firms are exempt (as I read them), but exemption probably is the more likely outcome.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

 

credit