Articles Posted in Creditor Harassment and FDCPA

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arkovich_law-narrowSo the Consumer Financial Protection Bureau is in the process of being shut down.  I expect that private consumer claims will increase thereafter when consumers realize that the government will not be taking action to protect them through the CFPB, FTC or other entity.

Many collection attorneys send out communications to a consumer’s past attorney as required by the Florida Bar.  We review them and send to our former client.  Here in the 11th Circuit which includes Florida, collection letters that are made from a collection attorney to a consumer’s attorney are actionable under the Fair Debt Collection Practices Act (“FDCPA”) per  Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268 (11th Cir. 2016).  To defeat a standing issue, it’s important that the consumer attorney relay the letter or communication to the client though.  Sometimes charging a small fee to review the matter can also defeat a standing challenge.

So what is a communication?  We use email a lot (who doesn’t right?) and there was just a case out under the Florida Consumer Collection Practices Act, Quinn-Davis v. TrueAccord Corp, No. 1:23-cv-23590-LEIBOWITZ/REID (S.D. Fla. Nov. 20, 2024) which held that merely sending an email does not constitute a “communication” unless it is actually opened and read.  This will reduce the viability of class actions based solely on information sitting in someone’s inbox.

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arkovich_law-narrowCall me jaded, but the Florida Uniformed Servicemembers’ Protection Act is a junk consumer law.   

 The Florida Uniformed Servicemembers’ Protection Act was enacted by the Republican led legislature over twenty years ago to make a lot of noise about how much the GOP loves veterans.  Like most consumer statutes enacted by the Legislature since Democrats last ran the state in the 1990s, it is all about appearance and no substance. It is the paradigm of how not to write an effective consumer statute.  

 The only thing it added was some stupid requirement that state agencies create literature telling service members about the SCRA. And no requirement that any business actually hand them out.  Quite frankly, I doubt anyone at the state even bothered to check the literature.

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arkovich_law-narrowBankruptcy is all about full disclosure.  Tell the trustee or court whatever assets you have and in return you receive a full discharge of most debt.  The reason I say most debt is because there are rules re: IRS debt, student loan debt and secured debt such as vehicles, 401k loans, etc.

One thing that is often overlooked is potential consumer claims that a debtor may have in bankruptcy.  Things like claims against credit furnishers, debt collectors etc.  Not only should you disclose these potential claims in order to receive the discharge in bankruptcy, but by failing to disclose the claims you will face hurdles in pursuing them later.

Often a bankruptcy trustee doesn’t want to pursue the claim and simply abandons it.  Then you are free to pursue either during the bankruptcy or thereafter.  You also may have unused exemptions to protect such a claim in case you want to raise it later.

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arkovich_law-narrowWhat should you do if you are being harassed for a debt that you did not sign for?  Here are some ideas:

  • If you acted as a power of attorney (POA) for another, the creditor is likely violating several consumer statutes for unlawfully collecting a debt against you.  We can help with that!
  • Most identify theft cases stem from a family member.  Depending upon the circumstances, you may want to file a police report, and send a copy of it to the creditor.
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arkovich_law-narrowCan I do All This Myself or Do I Need an Attorney?

Yes, dealing with your debt is something you can do yourself. But like anything, sometimes it is better to hire someone who does this day in and day out. Particularly if you have a lot of debt or assets to protect.  Many of the borrowers we speak with are unaware of key governmental programs and how to jump through the various hoops to qualify. The student loan system itself is the least transparent of any system that I have ever seen in my 30 years of practicing law. For private loans, negotiation or litigation can be involved; both of which a borrower is not well suited for in most cases. We know deadlines that may apply for tax free relief.

If it’s a bankruptcy, we know all the trustees, the rules, the loopholes, basically how to not only get things done, but also to obtain the best result.

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arkovich_law-narrowCredit reports have more errors than ever right now.  Student loans, car loans, really – any kind of credit out there, is often reported inaccurately on your credit reports. It costs you nothing to have us take a look.  Our Fair Credit Reporting Act cases are ALL on a contingency basis – no fees/costs unless we are successful.  Our clients are netting significant settlements – money that you can use to pay off other debt – or start a family/business, whatever you’ve always wanted to do, but never had a lump sum saved to take the plunge.

Take these steps and let’s work together to get it done!

  • Go to annualcreditreport.com
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arkovich_law-narrowConsumer complaints in Florida have a few things going for them that can make them easy to prove.

One of the things that benefits Florida consumers is our use of the “least sophisticated” debtor test.

What does this actually mean?

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When is it time to ignore calls versus doing something about them?

If you are being harassed or threatened collection actions on old debt, there are many things to consider.  First, a legitimate collector is required to send you something in writing within five days of the initial contact under the FDCPA.  That’s sort of a litmus test.  Receiving nothing in writing is a violation, but it’s also a sign of a debt scammer.

Second, check your credit report via annualcreditreport.com.  If the debt is on there, it’s causing you harm and you should do something about it.  Contact us or another consumer attorney — the first steps would be to dispute the debt.  Often the consumer rules aren’t being followed.  For instance, balances are reflected more than once, or are inaccurate in other ways.  We often file actions under the Fair Credit Reporting Act which may result in the debt being removed once and for all (waiver of debt or trade line deletion), and you may receive damages due to the inaccuracies.  Everything relies on good credit it seems.  Bad credit can harm you in all kinds of ways.  You don’t pay us up front – we only get paid if we are successful in obtaining a recovery.

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People are often confused about how attorney’s fees work – when do you have to pay your own, and when does the losing party have to pay?  This question is very important when you are faced with a decision of whether to “take someone to court”.  In the United States, each party pays their own attorney’s fees unless a contract or statute states otherwise.  Often a person is denied justice unless a contract or statute allows recovery of attorney’s fees because it simply does not make financial sense to right all wrongs.

Many consumer protection or debt harassment protection statutes such as the FCCPA, FDCPA, and the FCRA provides for the recovery of attorney’s fees.  Attorneys act essentially like mini attorney generals in that regard.  We can sue for someone under a statute that provides payment from an offending creditor for instance.

Contracts are another way in which attorney’s fees are recoverable.  You might read in a mortgage or debt related contract that the creditor is permitted to obtain its attorney’s fees and court costs if it has to pursue legal action to collect a debt.  While these contracts don’t clarify this, an attorney’s fee provision in a contract goes both ways, at least in Florida.  If the consumer is the prevailing party, the consumer can obtain their attorney’s fees and court costs as well.

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Now that debt collectors are back and moratoriums are falling away, this is a good opportunity to remind Florida consumers about limitations that bind debt collectors.  Basically, things they may do or say that could get them into trouble, and give you recourse to sue or settle or more favorable terms.  So what do we look for?

  • Misleading letters regarding payment options, statute of limitations, or credit reporting.
  • Letters lacking required disclosures or misleading about dispute process.
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