When a Collection Agency Wants More Than You Can Afford

Q: I owe Dell Computer about $3,000 due to lack of payment. I tried to pay them monthly but they won’t accept that. They want a settlement of $1,800 or payment of $450 a month which I do not have. I am dealing with their collection agency. How do I handle this?

A: Even though it’s stressful to deal with debt collectors, ironically, it’s when your account is past due that you are often in the best position of all to negotiate with bill collectors and collection agencies. You have something that bill collector wants – cash. They also have something you want – the power to update your credit report, and to go away. So your strategy, in a nutshell, should be to dangle the cash carrot before their eyes – whatever amount of cash you have. Read on for more tips about your options for dealing with debt collectors. This information is adapted from my book, Perfect Credit: 7 Strategies to a Great Credit Rating.

What To Ask For From the Collection Agency

Depending on the status of your account (open, closed, charged-off, etc.), and how far behind you are in your payments,  your goal should be to bring your account current,  to set up a payment plan, or to agree on a reduced amount that the company will accept in lieu of full payment. In all these cases, what you’re really doing is settling your account and/or restoring it to good standing. In exchange for doing that, you must insist on getting the bill collector’s agreement to delete negative information that was previously reported about you. At the very least, they should update their records to reflect a “paid” current status. But often collection agents will do this, and keep in your credit file such notations as “was 60 days late.” Therefore, in most cases, it’s best to firmly negotiate for the outright elimination of negative information in your credit report.

Avoid Sending Post-Dated Checks

When you reach an agreement, put it in writing and have both sides sign the pact before you pay a dime. This way you’re protecting yourself if the person you’re negotiating with reneges on your deal. Don’t ever agree to send a post-dated check or a blank check to a bill collector. First of all, you’re giving them too much of your personal information by supplying them with your checking account number and bank name. Additionally, too many consumers report having been burned by bill collectors who cashed checks for more than they should have or who deposited checks ahead of the agreed-upon date.

If you can’t pay a debt, creditors and bill collectors may be willing to settle out of court with you for a lump sum payment of less than the amount you owe, or a monthly payment plan, but they also will not hesitate to sue you for the full amount of the money you owe them – if they feel the debt is large enough to go through the hassle, time and expense of going to court. So what should you do if you receive a summons and complaint from a creditor? In a nutshell: Answer it.

What Happens If You Do Not Answer the Complaint?

If you choose not to answer the complaint, the Court will enter a judgment against you, determining that you owe the creditor or bill collector whatever amount they asked for. You may even be told to pay their attorney fees. The creditor or bill collector can then use that judgment to garnish your wages, take certain monies from non-exempt bank accounts or put a lien on your property.

If you answer the complaint (and you usually have about 20 days to respond to the plaintiff’s claims), you preserve your right to be able to argue your position in court. You also will be notified of any future court dates. You can use your time in court to state why you don’t owe the money they claim.

What If You Do Owe the Money they Claim?

Even if you do know for sure that you owe the exact amount the debtor claims, you can still use your time in court to state another amount that you can afford to pay. Although typically, if you admit you owe the alleged amount, a judgment against you for said amount will be rendered. Your real leverage comes simply by answering. The debtor does not want to appear in court any more than you do. They simply want to get paid. Once they see how time-consuming this may become for them since they are not receiving a default judgment, they may be more willing to enter a settlement agreement with you.

What If You Don’t Have the Money to Pay?

It doesn’t matter if you don’t have the money. The debtor can still sue and the Court can still enter a judgment against you. Being broke is not an excusable reason to back out of your financial responsibilities, as the debtor is willing to shake the money out of you if it could.

The courts will likely require you to file a financial statement and affidavit concerning your case and your finances. If you can show how you don’t have the funds to pay, or that you lack a steady income, the creditor or collection agency may be more willing to negotiate with you for a settlement plan.

Of course, they don’t have to enter into a payment plan with you. They can reject your offer and then sue you for the full amount. A creditor or collection agent is more likely to reject a payment plan if they believe you have the means to pay, if they know that you have wages they can garnish, or if they are aware of property they can attach a lien to, or a bank account they can raid.

It is often, however, in the creditor’s financial interest if they reach a settlement plan with you if you don’t have the means to pay.

Once an account has been charged off or written off as uncollectable, you may be in a better position to negotiate a lump sum payment to settle your debt. In this instance, you might try offered 25% or so of the balance you owe. Be careful with offering a monthly payment plan. Because if you miss a payment, the clock can start all over again for the full amount of the debt you owe. And negative information could be on your credit report for another seven years.

What to Do When You Get a Summons Or Have to Go To Court

Creditors can sell your debt and when they do, collection agencies will often try to threaten you with court action in order to get you to pay an alleged debt. Technically, it is illegal for collectors or creditors to threaten court action if they do not intend to carry through with it.

Taking you to court is time consuming and expensive for them, and there is no guarantee it will result in the outcome the creditor wants.  So typically, a court action is a tactic to get you to fork over money, or to obtain a default judgment against you if you don’t respond to a summons and complaint. If you do get a complaint, follow steps:

1) Answer a summons and complaint. If a creditor serves you with a summons and complaint, not merely a letter saying you owe debt, then you must answer within a certain timeframe set by your state laws (perhaps 10, 20 or 30 days), in order to avoid a default judgment.

2) Know the statute of limitations. There is a time limit on how long creditors have in which to try to obtain a judgment against you for the money you may owe them.  That “statute of limitations” varies by state and type of debt.  Typically, it is anywhere from 3 years to 10 years. A creditor can use the limits in your state or the state where they are located. They will often use the state with the longest statute of limitations, because it is obviously beneficial for them. To check the statute of limitations on debts in your state, contact your State Attorney General’s Office or go to www.naag.org and click “The Attorneys General.”

3) Realize that credit bureaus limits are not the same as debt statute of limitations. Federal law typically requires credit bureaus to drop negative information after about seven years from the date of your first missed payment. (There are exceptions, such as bankruptcies can stay on for 10 years, and tax liens can stay on for longer). If you live in a state with a 3-year statute of limitations on legal collection of debt, it will still show up on your credit report.  If live in a state that allows judgments to be entered for 10 years, it is possible the debt came off your credit report after 6 years.  So do not use your credit report to help you determine if you owe debt. You can use it, however, to check to see when the creditor first considered you to be delinquent.