Friday, April 19, 2013

Salary Overpaid--Employer Suing for Wage Overpayment

Hello Lee,

 I hope you can help me. I received a notice from Linebarger Goggan Blair & Sampson, LLP (Attorneys at Law) stating that I owe $11,300 to their client Los Angeles County. I used to work for LA County and quit in 2008. They overpaid me for a couple of months and I personally let them know so that they could stop. I wanted to return all the extra money they'd paid me but they wanted all the gross amount. I disputed but my dispute went nowhere. Now I'm in collections with Linebarger Goggan Blair & Sampson, LLP . I sent a Letter requesting Debt Verification within 30 days. It has been 90 days and they haven't replied. Should I send them another DV letter? I'm scared, I read that these lawyers are tough to beat because they work collecting debt for the government, so they don't care about going to court. I'm not working but I've been told that if they win in court they can garnish my husband wages. I live in California. I read that the SOL for public employees is 3 years, do you know if this is true? It's been more than 3 years since I quit working for the LA county(I was a public employee) Also, this is an overpayment debt, is the law different with this type of debt? 
Please help.


Dear Pat,
Your situation is clearly unusual. This is the first time I've encountered a debt collection for the overpayment of one's paycheck.

Let me see if I've got this straight. You say you offered to return the overpaid wages. Instead of accepting the money, the city demanded that you return your gross pay which is pre-tax. Assuming that they taxed you as usual, that would mean you would be returning the overpaid funds but also the money you legitimately earned in addition to taxes that had already been withheld, correct? This would leave you with no income whatsoever for two months of work that you performed simply because of their payroll error, yes?

As far as collection activity goes, a law firm is considered to be bound by the Fair Debt Collection Practices Act if that law firm is hired to collect a debt on behalf of the original creditor. Assuming that this law firm is attempting to collect a debt (and I don't see how they'd argue otherwise) they would be considered a third-party collector and bound by federal debt collection regulations. Thus, their initial contact with you should include a dunning letter containing the mini-Miranda ("This notice is intended to collect a debt and any info obtained will be used for this purpose") and notifying you of your right to dispute the validity of the debt. Provided you do so within 30 days, and it sounds as if you did, the law firm must provide you with proof of the debt they claim you owe. Continuing to conduct collection activity without honoring your validation request is a violation of the FDCPA. I'm going to assume that, since these guys are lawyers, they haven't broken the law and thus you haven't heard from them since you sent your DV letter. 

I can tell you the statute of limitations for general debt collection in California, but I have a feeling that isn't going to matter. I've heard the same thing in regards to the statute of limitations for recovering an employee's overpaid wages being 3 years but I haven't yet been able to verify that information as accurate. The standard SOL is four years. 

My recommendation to you is to schedule a free consultation with an attorney to determine the best course of action for defending yourself in this situation. This isn't something you're going to be able to fight on your own. If you try, they'll find a way to railroad you – even if you have a laundry list of FDCPA violations. If the SOL has indeed passed, the attorney will be well worth the cost. Depending on your situation, you may even have grounds for a countersuit that will cover your attorney's fees. I cannot stress enough how important this is. 

And as far as your husband's wages go, yes, they can garnish them. California is a community property state. Community property laws are intended to protect both spouses should a couple divorce, but debt collectors use them to force one spouse to pay another's debts. Not only can they garnish your husband's wages, they can levy his bank accounts and place liens against personal property and real estate he owns. They need to win a lawsuit against you (or your husband. They have the right to sue your husband for the debt instead of you) before they can go after your/his assets. 

If you haven't already, start creating a paper trail NOW. Try to stay off the phone. Instead, force all parties involved (except for your lawyer) to communicate with you in writing only. This gives you a clear paper trail of all events. If you've received emails, print those out and keep them as well. Create a timeline of events and place all of your paperwork in a file to hand over to your attorney. Remember, they need to sue you and win in order to force you and your husband to pay. If you and your attorney can prove the SOL has expired, suing you should no longer be an option. 

If you have a chance, let me know how this goes for you and what your attorney says. Best of luck. 


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