Creditor Harassment and FDCPA

Published on: May 27, 2015

Tax Intercepts, Wage Garnishment, Payroll Loan Deductions: How Can a Debtor Afford to File Bankruptcy?

Bankruptcy filings are down substantially in 2014 to only 910,090 which is the lowest number since 2007. Yet at the same time, people are still losing their homes especially in Florida, wages are flat or down and the cost of living continues to rise other than gas which isn’t too bad).

So why are the bankruptcy filings down? Well in some areas, the economy is picking up. Interest rates to carry debt remain low. But overall, I think some of this has to do with the fact that people cannot even afford to file. Many folks in the Tampa Bay area come to us to file when they receive a tax refund – but this year, many people had their tax refund intercepted due to defaulted federal student loans.

There is a way to file bankruptcy on the creditor’s dime that no one really talks much about: talking to an attorney about pursuing debt collection violations. Not all bankruptcy attorneys do this, so you need to talk with someone who actually sues for creditor violations plus files bankruptcy.

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Published on: May 19, 2015

Top debt collection violations are harassing phone calls per $8 million fine by CFPB

By Christie D. Arkovich, P.A.

The Consumer Financial Protection Bureau (CFPB) recently fined DriveTime Automotive Group, Inc. $8 million for harming customers for making harassing debt collection calls and providing inaccurate credit information to credit reporting agencies. Such a large fine underscores the importance of the consumer protection laws such as the FDCPA, the FCCPA for Florida consumers and the TCPA for cell phone calls.

These consumer statutes basically allow private attorneys to sue creditors on behalf of their clients and obtain both statutory damages and attorney’s fees. Without that, no one would be able to financially afford to challenge creditor violations.

So what were the most common violations by DriveTime that the CFPB found?

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Published on: May 13, 2015

Florida Consumers can Revoke Consent to Call a Cell Phone (and there is no exception for private student loan debt collectors, just saying)

By Christie D. Arkovich, P.A.

cell phone stop 2.png Revocation of Consent

One of the pressing issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. The TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. So that raises two threshold questions: can prior express consent be revoked and, if so, what constitutes valid revocation?

There is a split in authority on whether consent can be revoked under the TCPA, but a number of courts are ruling that the conclusion that consent is revocable. The U.S. Court of Appeals for the Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. Applying the common law concept of consent, the court reasoned that a right to revoke is not inconsistent with prior FCC decisions. Several courts have followed the Third Circuit’s lead, including the Eleventh Circuit (which governs the State of Florida) in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. Mar. 28, 2014).

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Published on: September 14, 2014

Watch out for Scam Bill Collectors Calling after a Bankruptcy is Filed

By Christie D. Arkovich, P.A.

I don’t know if this is occurring to our Florida bankruptcy clients, but I imagine it is. The ABI

I have a warning for you about scam bill collectors. Criminal gangs are posing as law enforcement officials. They are calling people and emailing phony threats to collect on fake debts that you do not owe. They pose as bill collectors. But they’re not. They’re thieves. During the past 2 weeks, one attorney colleague has heard from at least five former clients who got these calls. The description is always the same. The caller will identify himself as a government official. The caller will proceed to tell you that they have a warrant for your arrest for bank fraud. You will be given an opportunity to pay an immediate cash settlement to avoid being arrested. These callers are thieves. They work out of telephone boiler rooms. Most are probably overseas, where they hide and avoid detection. The callers usually have a heavy foreign accent.

How Scam Bill Collectors Target You.

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Published on: August 30, 2014

Stop Continued Calls by Mortgage Company

By Christie D. Arkovich, P.A.

cell phone stop.jpg Many of our Tampa Bay, Florida clients facing foreclosure want to speak with their mortgage company and reach some kind of agreement for a loan mod, deed in lieu, cash for keys or short sale. Many do not. They’ve been there and done that and no longer want to receive in some cases hundreds of calls from a mortgage company.

So what do we recommend clients do in these situations? Well first of all, any company which calls your cell phone after you verbally tell them not to is acting in violations of the Telephone Consumer Protection Act (“TCPA”). If you have filed a bankruptcy, all calls regarding a debt are generally prohibited. All calls after you send a cease and desist letter are generally prohibited.

The reason I say generally prohibited is because there are some areas that may be allowed. For instance, a notice required by Florida Statute to send you information about cancelled homeowners insurance or escrow notices may be fine. But these are generally letters, not phone calls. However, even these notices are potentially improper if they address a debt being owed or otherwise appear to be an effort to collect a debt. We presently are involved in a class action in the Middle District of Florida, Tampa Division, of the U.S. Bankruptcy Court, on behalf of a client who continued to receive notices about insurance and escrow that appeared to state repeatedly that he would be charged for this debt — and he had filed bankruptcy and had obtained a discharge of all debt associated with the mortgage!

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Published on: July 16, 2014

Cell Phone Calls that Drive you Nuts – the TCPA can help!

By Christie D. Arkovich, P.A.

cell phone stop.jpg Have you ever provided your cell number to a company and it later started to call you incessantly to collect a debt of someone else. I’ve recently had that happen to me. My father was hospitalized with a stroke and I gave my cell phone number to somebody at the hospital when we were making decisions about his medical care. At no time did I authorize the hospital to have its bill collectors call me at 9:00 p.m. every night well after my father was discharged from their care.

Fortunately, the Federal Communications Commission (FCC) just clarified a 2008 ruling and stated that such debt collection activity is in violation of the TCPA. (the Telephone Consumer Protection Act). The clarification resulted from a recent appellate case Nigro v. Mercantile Adjustment Bureau where someone had sued because they were called 72 times over a nine month period of time to collect on a $67 delinquent bill. Mr. Nigro had provided his cell phone number to the company when he called to shut off the service of his deceased mother in law’s account.

Mr. Nigro lost his case at trial. But the appellate court judges reached out to the FCC for clarification. The clarification stated that prior express consent to call is deemed to be granted only if the wireless number was provided by the consumer to the creditor and that such number was provided during the transaction that resulted in the debt owed. While Mr. Nigro did provide his number to the creditor, it was not during the transaction that resulted in the debt owed. This FCC clarification will have a nationwide impact.

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Published on: September 4, 2013

Consumers have a Right to Prevent Robocalls! A Florida Law Firm Uses the TCPA to Settle Debts.

By Christie D. Arkovich, P.A.

A three judge panel federal court ruled recently against Dell Computer when Dell continued to use an automated dialing system to make debt collection calls to a consumer. This consumer had written Dell asking it to stop calling her cell phone. Dell ignored the letter.

The 3rd Circuit Court of Appeals in Philadelphia ruled that although the consumer had initially listed her cell phone number on her application for credit, she later revoked the consent to call her on that cell phone. This case is likely to have far reaching implications including as far away as Florida because it is a federal court and believed to be one of the first to consider this issue.

The debt collector unsuccessfully argued that the consumer did not have a right to revoke consent. Once given, it argued Dell could call and call, and then call some more. It couldn’t have been more wrong.

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Published on: March 31, 2013

The Complexities of Bankruptcy: Chapter 13 Plan Choices

By Christie D. Arkovich, P.A.

At the end of February 2013, the Middle District, Tampa Division of the U.S. Bankruptcy Court announced an amended Uniform Chapter 13 Plan would have a new choice for debtors. Debtors can now choose whether they want property of the estate to vest in the Debtor’s name upon confirmation of the plan, or they can choose to wait until discharge or dismissal.

Ok, so what does this really mean? I would easily bet that most debtors do not know what option is best for them in their particular situtation. I imagine that the volume bankruptcy mills don’t care even if they do know. After all I get several emails/calls a month from debtors who hired a mill who got things wrong or won’t return phone calls. They’ve been forced to google for the answer and came up with my blogs. Sorry, you get what you pay for, but that’s another story for another day.We refer to this quandry about vesting as a Section 1306 vs.1327 question. Under Section 1306, vesting occurs at the discharge. Under Section 1327, it occurs much earlier at confirmation of the plan. An Eleventh Circuit case from July 2000, Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000) pointed out a perfect example of why a bankrupt debtor may want to leave jurisdiction over property with the bankruptcy court until discharge. In that case, the mortgage company began to apply post-petition mortgage payments to its attorney’s fees and costs of curing a default after confirmation. First Union forceplaced insurance not with the prior insurance company used by the debtor, but rather with its own subsidiary at considerable additional expense and hefty fees to First Union. No approval of the bankruptcy court was needed since the plan had allowed the property to re-vest with the debtor. As the debtor owed less on the the property than what was owed, this was a pretty sneaky way to relieve the debtor of years of built up equity.

As a consumer advocate and Max Gardner bootcamper, we highly recommend that Debtors take advantage of the protections afforded by the bankruptcy court and choose to vest property to the debtor at the time of discharge or dismissal (the end of the case) and not the far earlier date of confirmation which occurs very early in the case.

Published on: January 2, 2013

Know your Rights When Faced with Debt Collectors: 10 Most Common Violations

By Christie D. Arkovich, P.A.

upside down man.jpg Don’t be fleeced by debt collectors. You have protections. In Florida, we have the Florida Consumer Collection Practices Act and the Fair Debt Collections Practices Act available to our clients.

I was reminded this week that not everyone knows their rights when the mother of a debtor called me. She was conned into paying $600 to avoid the threatened arrest of her daughter per a warrant that was allegedly on the judge’s desk to be signed in 20 minutes. My client needed that $600 but under presssure, she caved. There are certain things debt collectors cannot do (and if they do, they are liable for statutory damages even though you do not have any actual damages):

1. Pretend to be someone else.

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Published on: September 1, 2012

I’ve just been served, what do I do?

By Christie D. Arkovich, P.A.

In Florida, typically someone who is sued is served with the lawsuit and given 20 or sometimes 30 days to file a response. If the lawsuit was filed in small claims court, you are given a date to appear at a pretrial conference instead of filing a written response.

The most important thing is: Don’t ignore the deadline. It doesn’t matter that you think you might be able to work it out or that you called the attorney’s office who filed the lawsuit. If you don’t file a timely written response with the court, or attend the pretrial conference, a default will be entered against you. A default judgment can last up to 20 years in Florida and is very hard to challenge.

Before the deadline expires, please see an attorney. Many attorneys, including our office offer a free consultation for foreclosure defense or debt collection matters.

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