Posts Tagged: ‘FDCPA’

What Constitutes Harassment by a Debt Collector?

July 2, 2018 Posted by kingcade

For an individual struggling with insurmountable debt, the continuous calls and communications can be overwhelming and stressful. However, at what point do these communications constitute harassment? And if an individual believes that he or she is being harassed by a debt collector, what is the recourse this person has against the debt collector?

Fair Debt Collection Practices Act

Debtors have protection from harassment from third-party debt collectors under a federal law, the Fair Debt Collection Practices Act (FDCPA). Under this law, debt collectors are prohibited from harassing, oppressing or abusing debtors while trying to collect upon a debt. This behavior includes continuous phone calls meant to annoy or harass the individual, use of obscene language and making threats of violence or retaliation against the debtor.

Specifically, the FDCPA prohibits the following:

  • Repeated phone calls annoying, abusing or harassing the debtor or anyone answering the phone;
  • Use of obscene or profane language in these communications;
  • Threats of violence or causing harm to the debtor or other person on the phone;
  • Publishing a list of individuals who refuse to pay debts, not including reporting the information to a credit reporting company;
  • Not disclosing the debt collector’s information when communicating with someone;
  • Contacting third-parties connected to the debtor and giving them information regarding the debt and/or why they are calling;
  • Contacting the debtor at work or showing up at the debtor’s work.

The FDCPA prohibits misrepresentations from being made about the debt. Essentially, the FDCPA makes it so debt collectors cannot use false, misleading or fraudulent practices when collecting on the debt. This means the debt collector cannot lie about how much is owed, cannot make false threats that the company will have the debtor arrested, cannot make false statements that the person on the phone is an attorney when he or she is not, cannot make threats to do things that are not legal, and cannot make threats to do something that the debt collector, in fact, has no intention of doing or right to do.

After the debtor has experienced a series of these violations, the FDCPA requires the debtor to send written notification to the debt collector to stop communicating with him or her and informing the debt collector that this communication is in violation of the FDCPA. If the debt collector continues to push and communicate with the person after this notification, it is recommended that the debtor file a claim for an FDCPA violation. If the individual does file an FDCPA claim and wins, the debt collector will pay the debtor damages, as well as attorney’s fees for having to file the claim.

It is highly recommended that the debtor keep a file of all communication received by the debt collector and keep all recordings of voicemails or other communications. It is also recommended that the debtor write down all dates and times that these conversations have occurred, along with notes about what was discussed in the event a legal claim needs to be filed.

Our firm works to hold creditors accountable for violating the protections allotted by the U.S. bankruptcy laws.  Recently, our firm’s motion was granted by a Florida judge in a case that held the creditor in contempt of court for violating the automatic stay in a Miami bankruptcy case. The Order directed the creditor to cease and desist all eviction proceedings until further order of the court.  The creditor in this case was also required to pay attorneys’ fees for our firm having to bring forth the motion to enforce the automatic stay to protect our client.

If you are dealing with a creditor you think may have violated the automatic stay, contact your attorney immediately.  An experienced Miami bankruptcy attorney will know whether the contact was innocent in nature or a willful violation worth pursuing.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

 

 

Debt Collectors’ Dialing Strategies Come Under Scrutiny in State Supreme Court Ruling

June 28, 2018 Posted by kingcade

A recent Massachusetts Supreme Court ruling has given consumers more protection from creditors seeking payment on outstanding debts while leaving some questions unanswered for creditors. The court has ruled in Armata v. Target Corporation, that creditors are not exempt from rules that limit contact with consumers who owe them money.

A copy of the decision can be found here.

In this case, the consumer, Debra Armata, incurred debt through her Target-brand debit card, and this debt became more than 30 days past due. Target then began to collect on the debt and contacted Armata using a predictive dialer. These devices transfer the cardholders who do answer the phone to a live representative about 95 percent of the time with the other five percent of the time leading the person to a recorded message.  There are no voicemails left if the person does not answer the phone.

Under Massachusetts law, debt collection laws limit how many times a creditor can try to contact a consumer telephonically to collect on a debt, limiting these calls to two every seven days. However, according to the Massachusetts Attorney General, any unsuccessful attempts by the creditor do not constitute initiation of communication if the creditor was “truly unable” to reach the debtor or leave a message.

Target did not argue that it contacted the plaintiff more than two times in seven days. However, the company argued it did not initiate communications because it uses an auto dialer and does not leave voicemails if no one answers. The company stated it was exempt from these regulations for this reason as it was “truly unable” to reach Armata.

The Court disputed this argument stating that Target was trying to create too large of a loophole that would essentially allow any creditor to avoid the limits imposed by state law by using auto dialing technology. It would leave debtors unprotected from these continuous communications.

The attorney general’s term “truly unable” was better defined in the opinion. One example given by the court was if the person did not answer the phone and did not set up his or her voicemail. If that situation occurred or the person’s voicemail was full, or phone disconnected, then the company would qualify as being “truly unable” to reach the consumer.

The court also clarified that creditors who use automatic dialers or those who voluntarily decide to not leave voicemail messages, such as Target, are subject to the state’s regulations.

Target had also argued that the company was not able to leave voicemail messages because doing this would risk violating the Fair Debt Collection Practices Act (FDCPA). The court pointed out that the company did not fall within the restrictions of the FDCPA, since that law covers third-party debt collection agencies and not the actual creditors themselves, such as Target.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

 

Steps to Take if Your Personal Debt Goes to Collections

June 5, 2018 Posted by kingcade

When someone is facing serious amounts of debt, it can feel like there is no end in sight. Odds are the individual is fielding continuous calls from debt collectors, all of whom are threatening legal proceedings if the person does not pay the debt owed. However, certain steps can be taken to help handle personal debt issues and hopefully avoid a lawsuit.

1. Review the Debt in Question.
The first step is to review the debt amount. Do not automatically trust what the debt collector is telling you, the debt they are attempting to collect could be expired or past the statute of limitations. It is recommended that the person facing the debt collection action first examine the information provided, research the collection agency that is reporting the debt and see if any discrepancies exist. The debtor has 30 days to verify that the amount is correct after the collection agency has contacted him or her. Take advantage of this time and carefully review the debt before making any payments.

2. Dispute an Incorrect Debt.
If, during this 30-day period, the individual discovers any figure that is inaccurate or unusual, it is recommended that he or she report this and provide proof that it is inaccurate. It is possible that the debt collection agency will clear up any discrepancy and adjust it as necessary.

3. Be Aware of the Fair Debt Collection Practices Act.
Not many individuals are aware that they do, in fact, have rights when it comes to collections. Simply because someone has missed a payment and has fallen delinquent does not mean that he or she has no rights. The Fair Debt Collection Practices Act is a federal law that protects the rights of consumers against harassment and aggressive collection practices by third-party collection agencies. Take the time to review the law and to understand what these rights include.

4. Discuss Payment Options.
If the debt is valid, it can help to talk with the collection agency about payment options. At the end of the day, these companies would rather be paid than have the debt be discharged in bankruptcy. Talk with the company to see what payment options are available. The consumer should examine his or her household budget to see what can be done to make payments to repay this debt.

5. Negotiate the Debt.
Another option that many consumers do not realize they have is to negotiate the debt. Many debt collectors or creditors are quite open to discussing other options for payment. If the individual is facing extreme circumstances or hardships, the creditor or collector may be willing to at least reduce the amount of debt owed or extend the deadline for payment.

6. Know the Statute of Limitations.
Every legal matter comes with its own set deadline for when legal claims can be made. Every state has its own statute of limitation for how long debts can be pursued. It is important that the consumer research what his or her timeline is and know what actions affect this timeline.

7. Be Aware of the Timeline.
After the collection proceeding is over, the debt will stay on the person’s credit report for seven years. This seven-year timeline does not start from when the delinquent account was originally opened but rather seven years from the time it became delinquent. Being aware of this fact can help when negotiating a payment on the debt since a paid debt will be viewed more favorably than one that continues to remain unpaid.

8. Understand the Consequences.
It is equally as important that the individual know what the consequences are to leaving a debt unpaid for too long. It also helps to know what the consequences are of ignoring a legal action if one is eventually filed. If the person is sued, it is extremely important that he or she at least appear in court and respond. It can be tempting to just ignore the matter, but by not appearing in court, the individual is likely to lose by default judgment and could have their wages garnished.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

Rent-A-Center Accused of Kicking in Doors and Crushing Customers’ Credit

May 21, 2018 Posted by kingcade

Rent-A-Center has recently made headlines due to its unethical treatment of customers and harassing debt collection practices.  In fact, it has gotten so out of hand that the complaints and harassment lawsuits have grown in numbers.

Rent-A-Center customers throughout the U.S. are now complaining that Rent-A-Center has virtually destroyed their finances after they have leased electronics, appliances and furniture from the company.

Rent-A-Center is a Texas-based publicly-traded company. The company started in 1986, offering consumers a way to purchase electronics and other household items that they would not be able to afford otherwise. The customers rent these items, making payments on a monthly, semi-monthly or even weekly basis. At any time during the lease, the customer can terminate the lease and return the household goods, or they can keep making payments until they own the items in full. The company’s mission aims to help those in lower-income households by allowing them to purchase items they would not otherwise be able to afford.

Once a customer begins to fall behind on his or her payments, that is where issues arise. Just one missed payment, missed by something as small as a day, can trigger aggressive collection efforts.

One federal lawsuit, brought by a Florida resident, claimed that she was forced to hide in a closet with her two young sons while a Rent-A-Center employee pounded on her door to collect payment on her rented household items. Another lawsuit claims that a Rent-A-Center worker kicked in her front door after she fell behind on payments for her laptop computer.

Even debt collectors are complaining about the practices of Rent-A-Center. In 2014, the collection company, Acceptance Now, took on accounts from Rent-A-Center, but as soon as debt collectors began making efforts to collect on the accounts, customers continually informed the agents that their debts had already paid. The problem was Rent-A-Center’s records did not reflect these payments.

Many states allow rent-to-own companies, like Rent-A-Center to file criminal charges against customers who do not pay on their rental agreements and do not return items when asked to do so. The collectors are well aware of this information, and Rent-A-Center regularly uses these threats to scare customers into making payments. It can make customers feel trapped in a no-win situation, not only fearing for their safety against aggressive collectors but fearing jail time if they are not able to make payments.

Between January 2016 and June 2017, the Federal Trade Commission received 2,779 complaints regarding both Rent-A-Center and Acceptance Now. Out of these complaints, 90 percent of them involve aggressive collection tactics, involving employees banging on customer’s houses and blasting car horns outside of homes.

Know your rights when it comes to creditor harassment. The Fair Debt Collection Practices Act (FDCPA) was designed to help prevent creditor abuse and harassment.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

What happens if I ignore a debt collector?

March 29, 2018 Posted by kingcade

If you are unable to make payments on a debt, you may be tempted to turn a blind eye until you are able to come up with the money. But this is one of the worst things you can do.  You always have the right to ignore a debt collector, but it will not make the debt go away.  Here are some possible scenarios that can occur if you ignore a debt collector:

They leave you alone.  You might think this is a good thing and perhaps the debt collector has forgotten about your debt.  But this is unfortunately not the case.

Your credit score suffers.  A past due debt will appear on your credit report regardless of whether you respond to debt collection attempts or not.

Your debt is transferred to another company. If the first collector is unable to reach you after repeated attempts, your account can wind up with a different agency.  This can happen a number of times if the balance remains unpaid.

The debt continues to grow. Just because you stop paying your debt, does not mean the interest stops growing.  Add on collection costs and this can cause the debt to double over time.

They reach out to people you know.  Debt collectors can reach out to people who know you to try and locate you, especially if you have changed your phone number or address to avoid collection attempts.  They are not allowed to tell them about your debt.  Revealing debt to third parties (i.e. – family, neighbors, friends, co-workers, etc.) is a violation of the Fair Debt Collection Practices Act (FDCPA).

A lawsuit is filed against you. Ignoring a debt and failing to communicate with a debt collector can result in you being sued. You can try your best to defend yourself, but if a judgment is entered against you it can result in wage garnishment and even funds being withdrawn from your bank account to pay off the debt.

Stress mounts.  The stress of debt can cause anxiety, sleepless nights, even marital problems. Avoiding debt collectors can leave you on the edge, wondering when the next phone call will be or collection letter will arrive in the mail.

Click here to read more on this story.

If you have any questions on this topic or are struggling with out of control credit card debt, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.