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SETTLING UPAID DEBTS

Copyright 1997, CRC, All Rights Reserved

INTRODUCTION

Many of us have, at one time or another, defaulted on a debt, such as a magazine subscription, a credit card, or a bad check. Usually, these bad debts show up on our credit report and haunt us every time we apply for credit. If this has happened to you, there is a way out, even if you can't afford to pay off the entire debt. You can settle the debt with the creditor.

SETTLING WITH YOUR CREDITOR

According to the Citizen's Rights Council, "the average consumer can settle a debt for about 70 cents on the dollar ... A professional negotiator will settle an average debt for about 60 cents on the dollar including their fee." If you need debt settlement assistance, use one of the URLS at the end of this document to locate help.

UNDERSTANDING THE RISKS

You may actually overestimate the risk of overdue debts. Creditors do have the option of wage garnishment or property seizure, but but unsecured debts, such as magazine subscriptions or credit cards, are not usually collected to the full extent of the law. However, if the debt relates to a an automobile or a home, the possibility of repossession is quite serious.

Very few creditors will resort to a garnishment on a relatively small unsecured debt. Garnishment and seizure are effective but expensive and time consuming. Even if the creditor did use these harsh methods to make you pay, they probably wouldn't be able to recover enough to offset their collection costs.

BANKRUPTCY

Many consumers fold under the perceived strain of unpaid debts. Hundreds of bankruptcies take place in the United States each week for amounts under $5000. They are so intimidated by their creditors that they flee to bankruptcy, even though bankruptcy can bring total credit devastation for the next ten years. If these same consumers had waited and ignored the threatening letters and telephone calls, they would have realized that their creditors were all bark and no bite. Bankruptcy is the best option for some people, but it is much overused. When a consumer files for bankruptcy, everyone loses - especially the creditors.

The risks of judgments, garnishments, and property seizures must be properly balanced against the likelihood that such drastic collection measures will ever happen. The risk, and the decision to take that risk, are entirely yours if you're in such a position.

WHAT DEBTS CAN BE SETTLED?

An unsecured debt is a debt where their is no collateral. Unsecured debts include:

+ Medical bills + Credit cards + Department store cards + Personal loans + Collection accounts + Student loans + Amounts remaining after foreclosure or repossession + Bounced checks

Most unsecured debts can be settled. But, utility companies generally wont settle for less than the full balance. There are some creditors who will NOT settle, but most will take a less-than full payment as a settlement to close a delinquent account.

Secured, collateralized debts, such as a home or automobile, are another story. If the creditor can simply repossess the property, why should he negotiate? You can often renegotiate a short payment relief with a secured debt, but don't attempt to settle the account while you still possess the property.

Additionally, the creditor must have a good reason to want to settle. If the account is paid current, and there is no recent history of late payment, it will be difficult to convince the creditor that it is in their best interest to settle. This is not a recommendation that you stop paying your bills that are current. If you stop paying your current bills, you will almost certainly make your credit situation worse. If bad credit is not an issue for you at this point and you feel you must stop paying your bills in order to settle them and get back on top of your debt load, make that a decision at your own risk.

GETTING THE UPPER HAND

After an initial period of attempted collection, the creditors will likely stop calling and the debt will be filed away for future attention. The longer the money remains uncollected, the better your chances of getting a good settlement.

Eventually, the creditor will consider the bad debt a loss in order to receive a corporate tax write-off. This does not mean that you don't owe the debt. The corporation may then collect on the debt themselves, sell or assign the debt to a collection agency, press for a judgment and garnishment, or temporarily ignore the debt. The course of action chosen by the creditor will vary widely between corporations and debts.

According to the Citizen's Right's Council "Many consumers lack sufficient funds to repay a debt in full when a creditor demands payment. In many cases, much of the debt represents interest and penalties accrued while the consumer was unable to pay. It will be in the best interests of both parties if a reasonable arrangement for settlement can be reached.�

Unfortunately, you cannot expect to reach an affordable settlement if the creditor thinks he has the upper hand. If, for example,you tell a creditor that you really need to get this debt settled to get into your dream home, you can forget any kind of settlement. The creditor will insist on the full balance.

It will be in your best interest if the creditor believes that you have very little money and you are teetering on the edge of bankruptcy. An attorney who handles your settlements should approach each creditor as though this is their last chance to compromise, and get something out of your debt, before you declare bankruptcy and they get nothing.

Also remember that time is on your side. Never look too eager to settle. Take plenty of time to reach an agreement. Don't accept the first, or even second, settlement offer. Make sure that they are the ones calling you to push the deal forward.

You have the natural advantage in debt settlement, because you have something the creditor wants. You must hold out for your terms until the creditor gives you what you want. Once you've written that settlement check, your advantage disappears. So, get your terms in writing before you even open your checkbook.

RESTORING BAD CREDIT

The credit reporting system gives consumers very little reason to pay their debts. If the debt were ignored, the consumer would have a good chance at never hearing from the creditor again, and, after seven years from the date the debt was written off, the negative credit listing would disappear. If the consumer were to pay the debt, then that seven year period would begin all over again. A paid collection or charge off will trigger credit denial as quickly as an unpaid collection or charge off. It's like getting time added to your sentence for good behavior.

Fortunately, creditors make their profits by collecting from their customers, not reporting negative credit information. Because creditors can see this "catch-22" situation, they will often agree to delete any negative listing upon settlement of the debt.

Collection agencies will always agree more readily to delete the negative listing than banks or credit cards. The only case where you should have a real problem with collection agencies is when they represent a larger, institutionalized creditor.

Many creditors, though, have an agreement with the credit bureaus that they will not allow a negative listing to be deleted upon settlement. Larger creditors, such as huge credit cards or banks will require more pressure before they will agree to delete a negative listing, but virtually every creditor will give in with the right amount of convincing. Every creditor who reports to the credit bureaus can also change the information they report. In most credit organizations, there are dozens of people with the authority to make changes on the credit report. Anything a creditor reports, a creditor can change.

You may take two approaches to having the negative information deleted upon settlement of a debt: pre-notification of terms and post-notification of terms.

Pre-notification of terms: you tell the creditor up-front that you will require the deletion of the entire negative listing as a part of the payoff. The agreement to delete the listing and consider the debt settled is documented in writing and signed before the payoff takes place.

Advantage: Time will be saved and you won't be disappointed at the last moment. It is also less likely that you will have to fight the creditor later to actually delete the negative listing.

Disadvantage: When the creditor discovers that your credit is important to you, he will usually ask for a larger settlement amount - sometimes full balance - to meet your terms.

Post-notification of terms: once settlement negotiations are complete, the creditor receives the agreed payment with the requirement that the negative listing be deleted attached to the check. This approach requires use of a "conditional endorsement" document (drafted by your attorney) notifying the creditor of your terms.

Advantage: You will almost always get a better settlement amount. The creditor will often be tempted by the payoff when the terms arrive and will deposit the check without blinking at the new terms.

Disadvantage: The creditor often hangs up on the new term and might send the settlement check back. The creditor might still ask for more money, or reject on the deal altogether. If the creditor simply deposits the check without intending to follow through with your new term, you will have to fight the creditor later and force him to delete the negative listing.

Never expect a creditor to meet an agreement that was made verbally. Everything must be in writing and, even then, you will probably have to fight to make the creditor live up to his end of the bargain.

You may find that some of your creditors are willing to hold out longer than you are willing to hold out before agreeing to delete the negative listing from your file. In other words, they will not agree to delete the negative listing under any circumstance. Once again, let it be said that every creditor will give you what you want if you speak to the right person long enough and you make the right offer. But if you are on a time- line, and your attorney can't get them to agree to full deletion, you have a couple of other options:

List the Account as "Paid" only. You may counter-offer that the creditor simply list the account as "Paid" rather than delete it altogether. This is a true indication of the status of the account and many creditors will concede and agree to this wording. A "Paid" status is still very negative for a collection account or an account that will show "Paid Charge-off" or "Paid repossession." You should only agree that the account show "Paid" if all other negative notations, such as "Charge-off," "Repossession," late notations, and "Collection," are deleted at the same time. A simple "Paid" notation on a regular trade line is neutral and should not hurt your credit.

List the Account as "Settled" only. You may counter-offer that the creditor simply list the account as "Settled" rather than delete it altogether. "Settled" is an inherently negative listing but not as negative as "Paid charge-off." Don't agree to a "Settled" listing until you have exhausted all other possibilities. "Settled" will still trigger a credit denial. You should only agree that the account show "Settled" if all other negative notations, such as "Charge-off," "Repossession," late notations, and "Collection," are deleted at the same time. If you agree to a "Settled" notation, you must continue to work hard to delete the notation through the credit bureau dispute process.

List the Account as "Paid Charge-off" or "Paid Collection" or "Paid was 30, 60, or 90 days late." This will be the creditor's first choice, and your last choice, of what to place on your credit report once you have paid. These notations are almost as damaging as showing the same debt unpaid. It is very common, though, for an account to be deleted (through credit bureau disputes) once it has been paid. The creditor now has no compelling reason to keep the negative listing on your report. For this reason, it is still usually a good idea to settle even if the creditor won't budge on deleting or positively modifying the negative listing.

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