Archive for FDCPA
“I’m Going to Put a Judgment on You”
Posted by: | CommentsOften we hear reports from clients that a debt collector threatened to put a judgment against them if a debt was not immediately paid. This is a misleading statement and may be actionable under the Fair Debt Collections Practices Act and/or the corresponding Pennsylvania law protecting consumers from abusive debt collection practices.
In reality in Pennsylvania, a debt collector cannot simply place a judgment on you. They must go through the entire lawsuit process. See I’ve Been Sued By a Debt Collector in Pennsylvania for an overview of the process. Also, see General Overview of the Debt Judgment & Execution Process. Remember, you should never ignore a lawsuit that has been filed against you.
If you have had a debt collector make a threat to put a judgment on you, have been the victim of any other kind of debt collector harassment or abuse, or simply would like to discuss your debt problems, please contact us. If you are not located in Pennsylvania, you can contact us for the name of an attorney who practices in your area and/or visit the National Association of Consumer Advocates attorney referral website.
Debt Collection After Bankruptcy Filing
Posted by: | CommentsAfter you file for bankruptcy, you receive protection from debt collection by the automatic stay. This is a Federal law that prohibits your creditors (and debt collectors) from attempting to collect debts during the pendency of your bankruptcy, with some exceptions. When you receive a discharge in bankruptcy, the automatic stay becomes permanent and any debt listed and discharged in your bankruptcy cannot be collected upon.
However, people who have filed for bankruptcy and/or received a discharge have been increasingly receiving collection calls and/or letters from debt collectors (not the original creditors listed on the bankruptcy.) Even though you are protected by the automatic stay/discharge order, the debt collector will claim that they did not have knowledge of the bankruptcy. They simply purchased the debt from the original creditor who did not tell them that a bankruptcy was filed.
If you are in this situation, you should contact an experienced consumer attorney for assistance. It is important to notify the debt collector (preferably in writing by certified mail, return receipt, with a copy of your “Notice of Bankruptcy Filing”) of your bankruptcy. After the debt collector has knowledge of the bankruptcy, they must stop collecting on the debt. If they do not, you may be able to take action against the debt collector under either 1) the Bankruptcy Code as a violation of the automatic stay/discharge order or 2) the Fair Debt Collection Practices Act.
You are not alone and YOU HAVE RIGHTS! Contact an attorney today!!!
Congress’ Intent When Writing the FDCPA: Protect Consumers First & Foremost
Posted by: | CommentsThere is a section in the FDCPA entitled “Congressional findings and declaration of purpose.” For those of you not familiar with reading laws, this section essentially sets out what Congress had in mind when writing the FDCPA. Arguably, this section can be used as a guide when encountering a question involving the remaining provisions of the FDCPA which may be unclear or when countering an argument by a debt collector.
The Congressional findings section of the FDCPA are very interesting and I will summarize them below:
1. Congress found that there “is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” and that these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to the invasions of individual privacy.” Section 1692(a).
2. It was also the opinion of Congress that the “existing laws and procedures for redressing these injuries are inadequate to protect consumers.” Section 1692(b).
3. Congress stated that there are ways for debt collectors to collect debts other than by abusing consumers. Section 1692(c).
4. It was also the opinion of Congress that, even if the abusive activity occurs entirely within one state, that abusive activity directly affects interstate commerce. Section 1692(d).
5. Congress stated the purpose of the FDCPA was to:
a. “eliminate abusive debt collection practices by debt collectors”
b. to ensure that debt collectors who are not abusive are not “completely disadvantaged”
c. “to promote consistent State action to protect consumers against debt collection abuses.” Section 1692(e).
After reading Congress’ findings and declaration of purpose, it becomes obvious that Congress intended first and foremost (almost to the extent of exclusively) to protect consumers from abusive debt collection by debt collectors. There is no mention of protecting abusive debt collectors. None, zero, zip, nada. The only intent Congress had in creating the FDCPA with regard to debt collectors was to “insure that those debt collectors who refrain from using abusive debt collection practices are not completely disadvantaged.” (Emphasis added.) Section 1692(c). Note that this isn’t even a strong protection for law-abiding debt collectors, just an expression that Congress thought it was okay to disadvantage debt collectors (probably given debt collector’s huge advantage over consumers) so long as compliant debt collectors are not “completely disadvantaged.”
The FDCPA is approximately thirty years old. Although the FDCPA has been refined and fleshed out by case law over the years, it is time for Congress to take action to ensure further and better protections (and updated damages) and remedies to protect consumers from abusive debt collection activities and to affirm that the Courts are following Congress’ intent in their application of the law.
(Copyright - Amy B. Good-Ashman 2008)
An Overview of How Consumer Debts are Collected & Goal of Debt Collectors
Posted by: | CommentsPre-Collection
* After a debt has not been paid, creditors generally hold a debt for 120 to 180 days.
* A creditor will attempt to maximize the debt without the use of a third party (i.e. debt collector).
* You may receive telephone calls from the creditor or letters from the creditor attempting to obtain a payment from you.
Charge-Off
The creditor “charges off the debt.”
The debt is still owed. It is charged off on the books of the creditor.
Debt Collectors
Primary Debt Collectors
* The debt gets assigned to them first.
* These debt collectors tend to be better collectors. Not better in the sense of treating consumers better, but better in that they are more successful in collecting on the debt.
Secondary Debt Collectors
* The debt gets assigned to them after the primary debt collector is not successful.
* These collectors tend to be more aggressive.
* Note that if a “cease contact letter” was sent to the primary debt collector, this debt collector will argue that it does not apply to them because they did not have knowledge of the letter when they received the debt account. You may have to send a second “cease contact letter.”
Tertiary Debt Collectors
* The debt gets assigned to them after the primary and secondary debt collectors are not successful.
* This tends to be in the debt buyer market. This can be a huge disadvantage for the consumer because they are ruthless collectors who tend to use no holds barred methods in collecting. You will have trouble with these collectors if you have filed bankruptcy anywhere in the foregoing process because they either 1) do not care that you filed bankruptcy on the underlying debt or 2) do not know that you filed bankruptcy on the underlying debt.
* Again, as with secondary collectors, it is probably best to send a new “cease contact letter” to ensure that the collector does not contact you and is aware of the status of the debt from your end (i.e. that you filed bankruptcy, that you are represented by an attorney, that you don’t owe the debt, etc.)
The primary goals of debt collectors are to:
1. Get a payment - partial or full.
2. Get an acknowledgment from you that you owe the debt.
3. Get a promise to pay the debt.
It is important that you contact an experienced consumer lawyer before you make a payment, acknowledge that you owe a debt, or promise to pay a debt. These actions can affect your remedies in the future.
(Copyright - Amy B. Good-Ashman 2008)
The 3 “B’s” of Being a Good Client in FDCPA/Debt Collection Cases
Posted by: | Comments- Always tell your attorney if the debt collection involves a business debt.
- Always tell your attorney about other collection actions against you.
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Tell the truth, the whole truth, and nothing but the truth to your attorney. By not doing so, you jeopardize your attorney’s ability to assist you.
Be Reliable
- Always provide your attorney with your current contact information.
- Keep appointments when scheduled.
- Provide your attorney promptly with any requested documents or information.
- Show your attorney you care about your case.
- Be involved, motivated, and participate in your case by:
1) Writing your own factual summary and mark it as “privileged” in advance. Supply it to your attorney.
2) Providing your attorney with ALL documents (including letters, envelopes, letters you sent, receipts, etc) and all tape recordings.
Be Presentable
- Remember you may have to give depositions and/or appear before a jury.
- You do not have to get a “make over” but you do have to be neat and tidy and appear to care about yourself and your case.
(Copyright - Amy B. Good-Ashman 2008)
If this has happened to you, you are not alone! Please watch this clip from the film Maxed Out. Debt collectors intentionally contact your work, family, neighbors, and friends with the goal of embarrassing you into making a payment that you may not be able to afford or that you may not even owe.
Contrary to the statement in the clip, it is not legal for a debt collector to call your neighbors or family members. The Fair Debt Collection Practices Act prohibits a debt collector who is collecting a consumer debt from contacting a third party without the consumer’s consent. There is a very limited exception to this rule. That is, a debt collector may contact a third party to obtain ”location information.” In most cases, this exception does not apply and it certainly does not allow disclosure of the consumer’s personal information. If you are aware that a debt collector has contacted ANY third party (i.e. work, family, neighbors, friends) attempting to collect a debt from you, you should contact an experienced consumer attorney to determine whether you have a claim under the Fair Debt Collection Practices Act.
(Copyright - Amy B. Good-Ashman 2008)
Wage Garnishment in Pennsylvania
Posted by: | CommentsHaving a debt collector threaten to garnish your wages to pay a debt can be very frightening. If you are a resident of Pennsylvania, we have great news for you! Your wages can only be garnished in a few very specific circumstances, none of which are to pay an old consumer debt. The circumstances in which wages can be garnished in Pennsylvania are:
- Under 23 Pa.C.S. Pt. IV relating to divorce;
- For support;
- For board for four weeks or less;
- For delinquent student loans; and
- For restitution to crime victims, costs, fines or bail judgments in a criminal proceeding. (42 Pa.C.S. Section 8127)
If a debt colletor has threatened to garnish your wages, you should contact an experienced consumer law attorney to evaluate your situation to determine whether you can get relief under the Fair Debt Collection Practices Act (FDCPA).
The Four Basic Requirements to Sue a Debt Collector Under the FDCPA
Posted by: | CommentsThere are four very general requirements that must be met in order for a person to obtain relief under the Fair Debt Collection Practices Act (FDCPA) laws. They are as follows:
- A consumer. A consumer, under the FDCPA, is “any natural person obligated or allegedly obligated to pay any debt.” 15 USC 1692a. Essentially, a consumer is any person who allegedly owes a debt.
- A consumer debt. A consumer debt, under the FDCPA, is “any obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 USC 1962a.
- A debt collector. A debt collector is anyone who collects the consumer debts of others in the regular course of business. It is important to note that the collecting party cannot be the original creditor (except for limited circumstances) if you intend to proceed under the FDCPA.
- A violation of the FDCPA. Violations could be endless and some specific scenarios are enumerated in the FDCPA. Future posts will cover these violations.
In general, it is a violation of the FDCPA for a debt collector to:
- contact a consumer at any unusual time or place, and not before 8 AM or after 9 PM
- communicate with third parties (with very very limited exceptions)
- engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person
- use any false, deceptive, or misleading representation or means
- use unfair or unconscionable means to collect or attempt to collect any debt
(Copyright - Amy B. Good-Ashman 2008)
Consumers Have Rights Under Fed Law
Posted by: | CommentsIf you are a consumer and you feel that you are being abused or harassed by a debt collector, there is hope! There is a Federal law that governs the way debt collectors can and cannot behave while collecting consumer debts. It is called the Fair Debt Collection Practices Act, commonly referred to as the “FDCPA.”
In general, the FDCPA protects consumers from abusive treatment by debt collectors who are collecting consumer debts as outlined in the FDCPA. Some of the prohibited conduct by debt collectors is as follows*: Read More→