Tag: debt collector

Debt Relief, Timothy Kingcade Posts

‘Overbiffing’ is the Latest Trend in Illegal Debt Collection

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A new trend is occurring involving unfair debt collection practices known as “overbiffing.” This practice occurs when a creditor or debt collector overstates a debtor’s balance in hopes of getting more money than what is owed.

A recent case in New York highlighted the problem. In the case, a New York debt collector overstated account balances for thousands of consumers in an effort to defraud them into paying more than they actually owe. The debt collector also used abusive and illegal tactics to get consumers to pay. The Fair Debt Collect Collections Practices Act (FDCPA) specifically prohibits this type of behavior, as was addressed by the court.

The “overbiffing” term comes from the act that the debt collector is trying to accomplish. The scam these companies are trying to accomplish is to tell the individual that what they are paying, which is an overstatement of what they owe, will pay the person’s “balance in full,” which is shortened to “BIF.” Of course, these “balance in full” payments are well over what that person owes.

One such debt collector is based in Buffalo, New York, named Robert Heidenreich, also known by the name “Bobby Rich.” The debt collectors working for Heidenreich have been accused of overstating balances that they say consumers owe on accounts. Regulators in this case used forms to compare the actual balances these consumers owe to the amounts that these scammers are saying that they owe. What these regulators found was that the difference between these two amounts was in the hundreds or even thousands of dollars.

Heidenreich’s employees were also accused of misleading the consumers about who was calling. Many of the employees knowingly violated the FDCPA by posing as attorneys or even law enforcement, as a scare tactic. Threatening legal action when one does not have the right to do so or impersonating an attorney or law enforcement is a blatant violation of the FDCPA. These employees would tell the consumer that they had committed a crime and were about to either be arrested or served with notice of a legal proceeding regarding the debt. The consumer would then be directed to another debt collector pretending to be an attorney, who would take payment over the phone on the alleged amount owed. If the consumer questioned the person on the phone, the debt collector would become aggressive and even abusive in response, which is another violation of the FDCPA.

If you have been contacted by a debt collector who is committing one or more of these actions, it is important you know your rights. Per the FDCPA, any third-party debt collector is not allowed to use threatening or abusive language when communicating with the debtor regarding a debt. The FDCPA also prohibits third-party debt collectors from misrepresenting who they are, as well as the consequences of not paying the debt. If a third-party debt collector has done any of these actions, you may have a valid claim for damages under an FDCPA violation.

As a consumer, you also have the right to request validation of the debt from the debt collector. This validation must be produced in writing and must include how much is owed and to whom the debt is owed. You should then take that information and check to make sure that the amount given is, in fact, correct. This information can be validated, for example, with information on the consumer’s credit report.

If a debt collector has violated any provision of the FDCPA, it is important you report the debt collector to the state attorney general’s consumer affairs division, as well as the FTC.

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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.

 

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

How Long Can a Debt Collector Pursue an Old Debt?

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When it comes to debt collections, certain rules do exist as to how long a debt collector can attempt to collect on a debt. These rules apply to the actual lawsuits themselves, as well as credit reporting.

Statute of Limitations

Every state has what is referred to as a statute of limitations, laws which set a limit as to how long an individual has to bring a legal claim on a certain matter. States have limitations on how long a debt collector has to collect on a debt. In Florida, the statute of limitations varies for different types of debts. For written contracts such as personal loans, the statute of limitations is five years. So once this type of debt is more than five years past due, the lender can no longer sue in order to collect owed money.

However, the problem is the debt collectors are not obligated to tell the consumer that they are past the statute of limitations. It is up to the consumer to do the research and know his or her rights if a debt collector is trying to communicate with a them regarding an old debt.  There are ways to deal with old debt. Most states have a statute of limitations for debt collections that restricts collections on debts that are four to six years after the date the debtor last made a payment.

One thing to keep in mind, if you think the debt is past the statute of limitations- do not pay on it, until you confirm. A single payment towards an old debt can revive that debt, restarting the statute of limitations.

Indefinite Attempts to Receive Payment

Technically, while there are laws that state how long a debt collector can take legal actions to collect on a debt, there is no law saying they cannot keep trying to contact the individual to pay on the amount.  For all purposes, the original creditor can try to get the individual to pay indefinitely, unless the debt has been settled or discharged in bankruptcy.

The law does restrict certain tactics taken by third-party debt collectors who are trying to collect on a past-due debt. The Fair Debt Collections Practices Act (FDCPA) specifically prohibits any communication from third-party collectors that is abusive, harassing or threatening. If a third-party debt collector is continuing to call to the point where the communication is harassing, the individual can send a written letter ordering that debt collector to cease and desist.

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.

 

 

Bankruptcy Law, Credit, Debt Relief, Student Loans, Timothy Kingcade Posts

Federal Judge Sides with Debtor Finds Law Firm’s Debt Collection Notice “Misleading”

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U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania denied the Law Offices of Frederic I. Weinberg & Associates’ motion for summary judgment and granted plaintiff Ronn Homer’s motion for summary judgment, holding that the law firm in violation of the Fair Debt Collection Practices Act (FDCPA) in its validation notices.

“We conclude that the validation notice in this case violates the FDCPA because it misleads and deceives the debtor about how and when to dispute the debt,” Savage wrote in his opinion on November 9, 2017. “The notice leads the debtor to believe that he may dispute the debt orally when only a written notice of dispute is effective. It also requires the debtor to act to dispute the debt in less time than the FDCPA provides.”

The crux of the case was in the meaning of a sentence in the debt collection notice: “Unless we hear from you within 30 days after receipt of this letter that you dispute the validity of the debt, or any portion thereof, this office will assume the debt is valid,” said Savage.

The plaintiff alleged that the notice creates confusion about how to dispute the debt and the timeframe in which to do so. He argued that the letter misleads the debtor into believing that the law firm must receive the notice of dispute within 30 days rather than that the debtor must send the notice within that timeframe.

In the end, the debtor prevailed and the judge concluded, “The letter here is misleading.  It creates the impression that the debtor can dispute the debt by calling the debt collector. The phrase ‘[u]nless we hear from you’ imparts the understanding that the debtor can dispute the validity of the debt orally. Contrary to Weinberg’s characterization, ‘hears from you’ is not a colloquial phrase that a reasonable debtor, let alone a least sophisticated debtor, would construe to mean that a dispute must be in writing,” Savage said.

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If you have any 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.

Bankruptcy Law, Credit, Debt Relief, Foreclosures, Timothy Kingcade Posts

Just How Often Do Debt Collectors Harass People? The Answer Might Surprise You

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According to the Consumer Financial Protection Bureau (CFPB), debt collectors are required to stop calling once an official request has been made to cease communication. However, approximately 75 percent of consumers who have asked for debt collection calls to stop say that the calls kept coming.

The CFPB released a report earlier this year that surveyed over 10,800 consumers in 2014 and 2015 about their recent experiences with debt collectors. They received approximately 2,000 responses that revealed that over one in four consumers have felt threatened by the debt collector that most recently contacted them. Although debt collection agencies are not allowed to abuse or harass consumers, many collectors do not play by the rules. Approximately 40 percent of consumers surveyed said they asked a creditor or debt collector to stop contacting them, however; only one out of four people reported the collector actually stopped.

Debt collection is a $13.7 billion industry in the U.S. and the most frequent topic of complaint fielded by the CFPB. Approximately 70 million people have been contacted by a creditor attempting to collect on a debt in the past year, according to the CFPB.

The CFPB recently issued proposed rules that would strengthen consumer protections by limiting how often debt collectors can contact consumers. The rules would also require these companies to get the details right and offer an easy dispute process.

Click here to read more on this story.

If you have any 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.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

What is Considered Harassment by a Debt Collector?

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According to the Fair Debt Collection Practices Act (FDCPA), debt collectors cannot harass, oppress or abuse consumers or anyone else they contact. Harassment by a debt collector can come in different forms.

Here are some examples of harassment:

  • Repetitious phone calls that are intended to annoy, abuse or harass you or any person answering the phone
  • The use of obscene or profane language
  • Threats or violence or harm
  • Publishing lists of people who refuse to pay their debts
  • Calling you without telling you who they are
  • Threats of arrest
  • Calling you before 8 a.m. and after 9 p.m.

If you have been harassed by a debt collector, you can sue for violations of the FDCPA. If you sue and win, the debt collector must pay your attorney’s fees and may also have to pay damages.

Debt collectors are also prohibited from using false, deceptive or misleading practices including misrepresentations about the debt.

Here are some examples of misrepresentations of debt:

  • The amount owed
  • That the person is an attorney if they are not
  • False threats to have you arrested
  • Threats to do things that cannot legally be done
  • Threats to do things that the debt collector has no intention of doing

If you have any 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.

Related Resources:

https://www.consumerfinance.gov/ask-cfpb/what-is-harassment-by-a-debt-collector-en-336/

http://timothykingcade.com/?p=6622

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

How Can I Verify Whether or Not a Debt Collector is Legitimate?

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Debt collection scams are becoming more difficult for Americans to detect. However, the Consumer Financial Protection Bureau (CFPB) offers consumers a few ways to recognize a real debt collector from a scammer.

According to the CFPB, the first thing you should ask the caller is for their name, company name, street address, telephone number and professional licensing number. The next thing you should do is tell the caller is that you refuse to discuss any debt until you receive a “validation notice” in writing, which debt collectors are required to provide. An important thing to keep in mind is do not give out any personal or financial information to the caller until you have confirmed it is a legitimate debt collector.

Below are a few warning signs that could indicate a debt collection scam:

  • The caller threatens you with criminal charges. If the caller is a legitimate debt collector, they should not claim they will have you arrested.
  • The caller refuses to give you information about your debt. You have the right to ask a debt collector about the debt.
  • The caller is trying to collect a debt that you do not recognize. If you do not recognize the debt, this is a red flag, the caller might be involved in a scam.
  • The caller refuses to give you a mailing address or phone number for the company.
  • The caller asks you for sensitive personal financial information. Do not provide your financial or personal information unless you are certain the caller is legitimate.

Click here to read more on this story.

If you have any 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, P.A. 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 website at www.miamibankruptcy.com.

Credit, Debt Relief, Timothy Kingcade Posts

Law Firm Faces Debt Collection Lawsuit

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On August 18th, a federal appeals court reinstated a Fair Debt Collection Practices Act (FDCPA) lawsuit against a law firm that misstated the principal and interest due on a credit card loan in a collection effort.

The FDCPA prohibits debt collectors from making false statements when collecting debts. It also states that any such false statement would be considered “material.” However, the FDCPA does not specifically define the term “material.” As a result, the U.S. Court of Appeals for the Ninth Circuit focused on that question when issuing a ruling in the case of Afewerki v. Anaya Law Group. The lawsuit came after the Anaya Law Group of Westlake Village, California attempted to collect on a debt from Robel Afewerki, who owed $26,916.08 on a loan with a 9.65 percent interest rate.

The Anaya Law Group sued Afewerki in state court, stating that he owed $29,916.08, which is $3,000 higher than the loan. The firm also misstated the interested rate, saying that it was 9.965 percent, which is 0.315 percent higher than the rate. Afewerki sued the firm under the FDCPA, but a district court held for the firm on summary judgment, said the misstatements were not material.

The Ninth Circuit Court disagreed and vacated that ruling, saying the misstatements were material based on how the “least sophisticated debtor” might react to the misstatements. The court said the least sophisticated debtor in Afewerki’s position, “may well have simply paid the amount demanded in the complaint and would have overpaid by approximately $3,000.”

Click here to read more on this story.

If you 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, P.A. 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 website at www.miamibankruptcy.com.

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

The New Age in Digital Debt Collection

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Experian announced a self-service platform named eResolve, which it says will let consumers negotiate and resolve past-due debts without ever speaking to a debt collector.  The latest technology in “digital” debt collection is allowing consumers to interact on their terms at any time of the day, using a digital channel that is more preferred over the traditional phone calls during dinnertime and having to deal with aggressive debt collectors.

TrueAccord, another digital debt collection technology says they have had “hundreds of thousands” in successful resolutions where consumers can easily click and tell them they have been victims of identity theft or had recently filed for bankruptcy so collection attempts can stop.

Negotiating debt through digital platforms seems to be more straightforward as well. For example, with TrueAccord a similar digital-type platform:  Debtors get an email with an offer such as making three payments with 0% interest, or 90 cents on the dollar if paid in full. Depending on what lenders say they will accept, a consumer who turns down that offer might get a subsequent pitch for an 80-cents-on-the-dollar settlement.  According to certain experts, this digital-based debt collection solves two problems. Chief among them: Regulatory issues. Computers do not call or text at the wrong times. They do not use profanity or threaten arrest to get you to pay, which are all in violation of the Fair Debt Collection Practices Act (FDCPA).

Click here to read more on this story.

If you have any 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, P.A. 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 website at www.miamibankruptcy.com.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Beware of a New Scam Involving Cash Advances

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The Better Business Bureau (BBB) recently warned consumers to beware of a new debt collection con where scammers pose as debt collectors who claim to be collecting on cash advances.

Here is how the scam works:

You receive an automated call from a company claiming to be collecting a payment for a cash advance. Next, the recording will prompt you to stay on the line and speak with an agent.

If you stay on the line, the agent will request that you pay your debt immediately using a wire transfer or a prepaid debt card. If you refuse, the agent will use threats of arrest, lawsuits or garnished wages to intimidate you.

Keep in mind that the use of threats in debt collection is in violation of your rights as a consumer under the Fair Debt Collection Practices Act.

If you receive one of these calls, the BBB suggests you do the following:

  • Just hang up. If you don’t have any outstanding loans, hang up.
  • Get an official notice. Ask the debt collector to provide an official “validation notice” of the debt. In the US and most of Canada, debt collectors are required by law to provide the information in writing. The notice must include the amount of the debt, the name of the creditor and a statement of your rights.
  • Confirm the agency is real. Ask the caller for his/her name, company, street address and telephone number.
  • Do not provide any information they do not have. Until you have verified the call, do not provide or confirm a bank account, credit card number or any other personal information.
  • Check your credit report. If you are unsure if you have outstanding debt, check your credit report with one of the three national credit reporting companies: Equifax, TransUnion or Experian.
  • Place a fraud alert on your credit report. If the scammer has personal information, alert the three credit reporting companies that you have been contacted.

 

Click here for more on this story.

If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all 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, P.A. 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 website at www.miamibankruptcy.com.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Debt Collection Dispute Headed to the Supreme Court

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The U.S. Supreme Court will decide whether firms collecting on a debt they bought for pennies on the dollar can be held liable in lawsuits brought by consumers.  The justices agreed to review a lower court’s decision to dismiss a consumer class action lawsuit against Santander Consumer USA Holdings Inc. over allegations it violated the Fair Debt Collection Practices Act– a debt collection law enacted in 1977 that prohibits collectors from using abusive, unfair or deceptive practices to collect a debt.

The current case hinges on the definition of “creditor” and “debt collector” and whether a company that purchases debt should be treated as a creditor and therefore not subject to the law.

The case (Ricky Henson et al v. Santander Consumer USA, Inc et al, in the Supreme Court of the United States, No. 16-349) involves four Maryland residents who defaulted on their auto loans, and filed a proposed class action lawsuit against Santander in 2012 in federal court alleging violations of the Fair Debt Collection Practices Act, such as misrepresenting the debt amount and bypassing debtors’ attorneys.

The debts had been sold to Santander, a Dallas-based vehicle-financing and lending company owned in part by a subsidiary of Banco Santander.  Santander then tried to collect on the loans.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia threw out the lawsuit last March, saying the law applied only to debt collectors, and Santander became a creditor when it purchased the loans.

The Maryland residents told the Supreme Court the 4th Circuit’s reasoning would “hamper both government and private efforts to combat abusive debt-collection practices.” The appeal to the Supreme Court comes as the Consumer Financial Protection Bureau is considering proposals to toughen regulation of the industry.

Click here to read more on this story.

If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all 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, P.A. 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 website at www.miamibankruptcy.com.