Active investigation: Wrongful overdraft and NSF fees

Have you been charged overdraft fees for a non-recurring debit card transaction or ATM withdrawal, despite never opting in to overdraft coverage with your financial institution? Have you been charged insufficient funds (NSF) or overdraft fees, even though you should have had sufficient funds in your account to cover the transaction in question? Our law firm wants to hear from you.

Consumers can fight back when their credit union or other financial institution wrongfully charges fees, such as for overdrafts or NSF transactions. Did you know the Federal Reserve requires consumers to opt-in for overdraft coverage for ATM and non-recurring debit transactions? The Consumer Financial Protection Bureau (pages 8-9) has found that certain financial institutions engaged in unfair or deceptive conduct by failing to fully disclose when and how an account enters overdraft status. Smith & Dietrich Law Offices, PLLC is currently investigating claims of wrongful overdraft and NSF fee charges by Washington credit unions and other financial institutions. We would like to hear from consumers who believe their rights have been violated.

Please note that while we welcome the opportunity to speak with you, this post is not suggesting that your bank or credit union has necessarily violated any law or your rights. We are conducting an investigation and only after a thorough review of your situation can we address whether you were improperly charged NSF or overdraft fees. Because each consumer’s situation is potentially fact-specific, we would appreciate the opportunity to speak with you about your concerns, your rights, and your available options.

Don’t Be Taken for a Ride: Getting the Relief You Need in a Lemon Law Case

Maybe this scenario sounds familiar: someone you know spends thousands of dollars, perhaps financed with a loan at a high interest rate, to buy an exciting new car. Sadly, though, the excitement is short-lived, since the vehicle promptly begins to experience a seemingly endless series of mechanical problems. The warranty service provider does not know what to say about the vehicle; it’s just one of those unfortunate “lemons.” What options are available for this frustrated car owner?

The good news is that Washington has a “Lemon Law” that protects car buyers in certain situations. By law, the manufacturer has to honor a consumer’s demand to repurchase or replace their vehicle if it meets the legal standard of a lemon. To have a winning claim, the car owner must generally begin to experience problems with the vehicle early—within the first two years or 24,000 miles after the original sale. The law defines four specific lemon law claims that trigger repurchase or replacement by the vehicle’s manufacturer. Read more about the specific types of lemon law claims on pages 3-4 in this brochure provided by the Washington Attorney General’s Office.

If you or someone you know is dealing with a suspected lemon law case, a consumer protection attorney should be able to help you understand your options, value your claim, and protect your interests. If you plan to seek a repurchase or replacement of your vehicle, an attorney can help present your case to the manufacturer or arbitrator.

Our firm has experience serving consumers with lemon law claims. Contact us for a free initial consultation if you would like to discuss your rights concerning a potential lemon. Certain special remedies may be available for owners of specific vehicles covered by class-action settlements; for example, you may have up to six years to pursue a claim for repurchase or replacement of the following Ford vehicles equipped with a PowerShift Transmission if they were originally sold in the United States and its territories:

  • 2011-2016 Ford Fiesta;
  • 2012-2016 Ford Focus.

If you are having problems with a suspected lemon, especially if it is a Ford vehicle listed above, contact us today to discuss your rights.

Frequently Asked Questions: For Consumers Facing Debt Collection

Help, I’ve Been Sued by a Debt Collector! What Should I Do?

The highly profitable debt collection industry is dedicated to buying (typically for pennies on the dollar) and collecting on consumer debts like credit card accounts, club or HOA membership fees, or even outstanding parking tickets or court fees. If you are sued by a debt collector claiming the right to collect on a debt you owe, you may have a defense against the case. Defenses can include, for example, lack of proper service of process, mistaken identity, lack of standing to sue you, time-barred debts, or that the claimed amount is incorrect. You may also have additional defenses or even claims of your own against the debt collector if your debt collector violates laws like the Fair Debt Collection Practices Act or related state laws.

Unfortunately, many consumers fail to timely respond to a debt-collection lawsuit, leading to entry of a default judgment against them. Once it is entered, a default judgment can allow the debt collector to garnish the defendant’s wages or bank account, or collect on the judgment by seizing other assets. It is possible to ask the court to set aside a default judgment under certain circumstances, but for best results, the defendant should appear in the case and file an answer to the complaint by the deadline listed in the summons.

To prevent entry of a default judgment and ensure you have the best chance of protecting your rights, you should discuss the situation with an attorney promptly after you learn of a debt-collection lawsuit filed against you.

I Haven’t Heard about any Lawsuit against Me, but a Debt Collector Claims I Owe Them Money.

If a debt collector contacts you, before you say the debt is yours (which could affect your rights in defending against the claim), you have the right to review validation of the debt. You should obtain the name and mailing address of the debt collector if you are contacted by telephone and keep this information handy.

Debt collectors and creditors can make mistakes, so it’s important to verify any information about a debt you supposedly owe. By law, debt collectors are required to give you validation of the debt either in your initial communication with them, or within five days of their first contact with you about the account (unless the debt has already been paid). These rules come from the federal Fair Debt Collection Practices Act. Validation has to include the amount owed, name of the creditor, and three statements— that: 1) unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; 2) if the consumer notifies the debt collector in writing within thirty days that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and 3) that if the consumer requests it in writing within 30 days, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. The validation letter gives the consumer a chance to dispute the claimed debt, if the debt collector’s information is wholly or partially inaccurate.

If you don’t receive validation of the debt during or shortly after your first contact with the debt collector, you may send them a written request for validation. If you have questions about whether a debt collector has acted inappropriately in attempting to collect a debt, you should discuss the situation promptly with an attorney familiar with consumer protection laws. An attorney may be able to help you dispute the validity of a debt if you act promptly, within the 30-day period after receiving a validation letter.

How Do I Know if a Debt Collector Has Violated the Law?

Consumer protection laws governing debt collection can be complex to understand and apply. You should discuss your situation with an attorney familiar with consumer protection laws to understand your rights and options for addressing legal claims against debt collectors who violate your rights.

Some of the key rules applicable to debt collectors are listed in the Fair Debt Collection Practices Act and Washington statutes governing debt collection agencies. For example, they may not:

  • Collect any amount unless authorized by law and/or by agreement (for example, in a credit card agreement you signed);
  • In most circumstances, contact third parties like your friends or family members about your alleged debt, unless you authorize such communications;
  • Engage in harassment or abuse, make false or misleading misrepresentations, or use unfair or unconscionable means to collect a debt.

An attorney can help you understand how the laws apply to the specific facts of your situation.

Will It Cost Me to Discuss My Debt Defense Case with an Attorney?

Generally, attorneys at our law firm offer potential clients a free initial consultation. If you are facing a lawsuit by a debt collector, we may be able to offer you representation for your defense. And if your rights were violated by a debt collector, we may be able to offer you a contingent fee representation for any claims you have under consumer protection laws.

Because a consumer who wins a case under the Fair Debt Collection Practices Act and related law is generally entitled to receive their attorney fees from the losing party, our firm can represent clients in those cases without having to charge you up front for our attorney’s fee. Please contact us if you would like to discuss your defense in a debt collection case, or your rights as a consumer in the debt collection process.

Unwanted Telemarketing Calls: Know your rights

Almost everyone has probably experienced the annoyance and frustration of answering the phone only to find an unwelcome call from a telemarketer selling some product or service. But did you know that telemarketing calls to your residence or cellular phone may be unlawful, and that consumers may be able to sue and recover damages from the caller? For example, consumers receiving calls with a prerecorded message, calls initiated with an “automated telephone dialing system,” and calls to a consumer’s number that is listed on the Do Not Call registry may violate the law and allow a consumer to recover damages. As one recent order issued by the Federal Communications Commission explains,

consumer consent is required prior to making autodialed or artificial/prerecorded voice message calls—commonly known as robocalls—to emergency telephone lines or to consumers’ wireless phones. Similarly, pursuant to the [Telephone Consumer Protection] Act and the [implementing] Rules, express written consent is required prior to making telephone solicitations to telephone lines registered on the national Do-Not-Call registry. Although Congress and the Commission have long worked to protect consumers from illegal, unwanted, and disruptive robocalls, such calls persist as the number one consumer complaint to the Commission. As technology has advanced, these calls have become more prevalent, more threatening, and even more challenging to prevent. Along with advanced and low cost spoofing technology, nefarious robocallers can easily hide their true identities from consumers and cause a variety of harms, including the disruption of consumer privacy.

In re Best Insurance Contracts, Inc., and Philip Roesel, dba Wilmington Insurance Quotes, DA 17-662, File No. EB-TCD-16-00023195 (citation and order dated August 4, 2017), ¶ II.3.

If you have received unwanted telemarketing calls and want to learn more about your rights as a consumer, contact our firm to request a consultation today. While this post summarizes general points about telemarketing laws, it does not constitute legal advice; our firm conducts a conflict of interest check and requires a written attorney-client agreement before we can advise or represent you.

South Sound water well buyer beware

For newcomers to the South Sound, it may seem hard to believe that anyone living here could ever find themselves short of healthful drinking water.   With an annual average of 50 inches of precipitation per year, the South Sound riddled with beautiful mountain fed streams and lakes.    Despite this natural bounty, many of our rural neighbors do indeed run out of  well water during the summer.  To make do some borrow a neighbor’s shower or have water hauled to the home.

In this post, for prospective rural homebuyers, I identify some risks associated with buying a residential property with an existing water well in rural Thurston County property.  I  suggest steps that prospective rural home buyers concerned about their future domestic water supply can take to avoid disappointment.   The water well-related risks of purchasing raw land and the impact of recent Washington State Supreme Court decisions on undeveloped rural land in the South Sound will be the subject of future posts.

South Sound Drinking Water Wells

“Domestic” water includes that used for normal in-home uses such as drinking, cooking, bathing, washing dishes and clothes, and so on.  Domestic use may include residential outdoor uses such as lawn and garden irrigation, and washing cars.  Rural property owners in the South Sound generally get their domestic water from a privately owned groundwater well.

In fact, if you live outside of a designated urban growth area, you probably could not legally connect to a municipal water supply even if one was available nearby.   Instead (unless your home is connected one of a few private water systems)  you will be a so-called self-supplied domestic water user whose domestic water is supplied by a private one or two-party well.

Generally speaking most residential property buyers are concerned about the quality and quantity of the domestic water available in their home.  Quality is particularly important if you want to drink or bathe with your water.  Quantity is important because most people don’t want to run short of domestic water.

People used to getting their household water from a heavily regulated municipal water supply may be surprised to learn that in Thurston County there still is very little government oversight or regulation of water quantity or quality from single or two-family wells.  With respect to quantity regulation, no water right permit is required for single or group wells supplying up to 5000 gallons per day and presently there is no metering requirement for private wells.  After your well is drilled, effectively you can use all the water that your well is capable of supplying.  Of course, your neighbors can do the same thing if so inclined and at some point production from their well may reduce the amount of water available to your well.

Regarding water quality, wells on relatively small parcels of land are always susceptible to contamination from nearby human or animal activity.  The well water may include fecal coliform or other infectious agents or toxins.  It may also contain very high salt or mineral levels that limit its uses.

Municipal water supplies are regularly tested for many contaminants and test results are publicly available.  For example, the City of Olympia regularly tests its supplies for 28 contaminants as required by state and federal regulations.  By contrast, for private wells Thurston County requires a only a one time test for two contaminants – fecal coliform and nitrates – before it issues a building permit.  After issuing the building permit the Thurston County does not require any water quality testing for water wells serving one or two families.   The County recommends but does not require annual testing of wells for fecal coliform  and nitrates every three years.  For more on rural water quality testing click here.

Sufficient water quantity is important to ensure you can meet demand but if there is no metered flow on the well, how does a prospective buyer begin to estimate the well’s flow capacity?

First, one can look back to the information originally submitted to the County by the developer for some fundamental information.    If the developer’s proposed water source was a well serving one or two families (systems serving more than two families have additional requirements), the permit applicant was required to submit a well log report prepared by the licensed driller that describes various details about well construction and the geology encountered during drilling.   The report also contained the results of a yield and reservoir recovery tests reflecting the capacity of the well to produce water.

The original well log report was probably used by county staff to determine whether the well met minimum construction standards and was capable of delivering the required volume of water.  Although Thurston County requires that home sellers prove that their septic system is functioning at the time of transfer (the so-called TOT report), there is no similar requirement applicable to drinking water wells.  For more on current Thurston County water well requirements and for tips on getting information on wells that predate those regulations, click here.

Currently, for a single family well, the Thurston County building permit regulations require a yield of 400 gallons per day (gpd).  A yield of 800 gallons per day (gpd) is required for a two family well.  At first blush, these may seem like reasonable levels as an average family of four reportedly uses around 200 gpd on an annual basis.   In this area, however, most households use significantly more water during the summer for landscape watering, filling kiddie pools, etc.  A South Sound family that consumes an annual average of 200 gpd of water, probably uses 400 gpd or more in July or August.

The yield indicated on the well report (and used to determine compliance with County building regulations) is based on a test for permit-exempt wells (i.e., for residential developments using less than 5,000 gpd) by state Department of Ecology regulation:

Testing of a well . . .  shall be conducted at a constant rate for a period of at least one hour or longer if required by the department of health. Test pumping under this section can be either by bailer, air lift, or with a pump. WAC 173-160-321.

One can imagine that an unscrupulous developer – if there is such a person – could improve his or her odds of getting an acceptable yield for the Certificate Water Availability for a building permit by drilling and testing the well at the optimal time of year and under optimal hydrological conditions.  Alternatively, if neighbors have drilled wells into the same aquifer since the well yield test result was obtained, your well’s current production rate is unlikely to match its original yield test figure.  So, the wary prospective buyer should take yield figures from a well report with a very large grain of salt.  The “yield” that was measured during the reported test in March of 2005, for example, is probably not the yield you will actually experience next August as your neighbor waters his lawn.

To better illustrate the potentially misleading nature of a well test yield estimate for the interested prospective buyer, a brief detour into South Sound hydrology might help.  As you read through (or skip) the overly simplistic discussion of hydrologic principles, your take away should be that the yield (gallons per day or gpd) reported on the well log report was determined a single well test that was conducted under hydrological conditions that are not representative of the conditions your well will experience in the future.    In other words, the well’s past performance during that reported yield test (which could have occurred decades ago) is not indicative of the performance you will obtain from the well after you move into the home.  For more on well yield testing click here.

Well-related due diligence for buyers

With that background, how does someone looking for the rural Thurston County lifestyle avoid buying a household water problem?  By problem, I mean a household water system that does not meet the buyer’s expectations for a reliable supply of potable water.

An ad may have attracted your attention to the property.  I have examined hundreds of ads for rural property in the South Sound. I do not recall a single one that included a warning that the property had an unreliable supply of household water.  I cannot even recall a single ad teasing that the domestic water system “needed a little TLC” or was “perfect for the handy person.”  If the ad included any statement about domestic water, it typically reported the yield figure from the original well report.  As previously demonstrated, that yield figure indicates only the well’s past performance over a very short period on one day.  It almost assuredly does not represent the yield you are likely to obtain in the future.

I have also never seen an ad suggesting that prospective buyers should test the domestic water supply to their satisfaction.  So, the advertising or MLS data you see initially is unlikely to raise any red flags.

As a first step, a concerned buyer should include a well addendum (NWMLS Form 22R) in every offer for rural property served by a water well.  That form requires to make additional disclosures about the water system beyond those required by Form 17 (RCW 64.06.021) and it allows the buyer to conduct additional testing of the water quality and yield. Consult with an expert from a local drilling or engineering firm to determine a reasonable suite of water quality and yield tests and condition your offer upon the satisfactory completion of the designated tests.

After you have scheduled recommended testing,  a concerned prospective buyer should also check the Department of Ecology’s well report data base (click here) to learn about any wells drilled on the property and nearby.  Similarly, the building permit file maintained by the county may offer some insight.  Even if this research doesn’t directly provide useful information, it can help you identify neighbors with wells similar to one you are considering and then you can ask about their experience.   If the neighbor has lived on their property for several years, they can be a wealth of information.  Ask if they have ever run out of household water and if they have any trouble with their well.  Ask if they know anything about the well on the property you are looking to buy or about nearby.  Given the variability of hydrological conditions, a neighbor with historical perspective and experience can be the best source of information.

Of course human tolerance varies widely and what is acceptable to one person (i.e., trucking in drinking water and showering at an aunt’s house) may not be acceptable to you.  My grandparents spent virtually all of their adult life in a house with undrinkable well water.  The picture above this post is the pump from their well.  They drove about a mile to the “town well” to get water for drinking and making coffee and never thought twice about it.  I have met few people as hardy as them, however, and most contemporary rural residents undoubtedly have higher expectations for their household water supply.

It is logical to turn to the seller and listing broker for information but the listing broker will likely profess no independent knowledge about the well.  In Washington state the listing broker is required to disclose known to him or her that are not readily apparent to the buyer and to  “deal honestly and in good faith” with prospective buyer.  RCW 18.86.030(1)(a).   The listing broker is not required to independently investigate the condition of the water supply for the parcel he or she lists.  RCW 18.86.030(1)(d).

Now that you know those legal rules, do you think most listing agents will ask their sellers hard questions about problems with the water supply?  The listing broker can and often will accept the seller’s representation (or misrepresentations) and then pass those along to you.  Even if the listing agent learns about a material defect regarding the water system, he or she may conclude that the defect is readily ascertainable to you and therefore need not be disclosed.  So, buyers, do not count on the listing agent to disclose the true condition of the property’s water supply. The listing agent represents the seller and is primarily motivated to close the sale and get his or her commission.

If there are questions about the well, however, you should put those questions in writing to the seller and their agent.  Although they may not answer and is not prudent to trust their answers without verification, their answer or non-answer can reveal a great deal.