Tag: FDCPA

Foreclosures, Timothy Kingcade Posts

Debt Collection Law Firms Must Follow FDCPA in Foreclosure Cases

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A federal judge has ruled that debt collection law firms are now subject to the rules of the Fair Debt Collection Practices Act in mortgage foreclosure cases.  The Fair Debt Collection Practices Act (FDCPA) was designed to help prevent creditor abuse and harassment.

U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania denied a motion by law firm Phelan Hallinan Diamond & Jones seeking to dismiss plaintiffs Tina Collins and Glendale Walker’s FDCPA claim, which alleged the firm failed to cease all collection activity before verifying the debt after the plaintiffs first disputed it.

According to the judge’s opinion, the plaintiffs alleged that the foreclosure complaint and Phelan Hallinan’s response to their notice of dispute “contained false and misleading representations thru [sic] deceptive means in an attempt to collect a debt.’” In addition, Collins and Walker claimed that the firm threatened to proceed with the foreclosure action without first verifying the debt.

The plaintiffs also claimed that the firm falsely represented itself as counsel to Wells Fargo, leading Collins and Walker to believe that Phelan Hallinan was a part of Wells Fargo’s legal department.

“Foreclosure, although legal in nature, is ‘activity undertaken for the general purpose of inducing payment,’” Savage said. “A debt collector cannot avoid FDCPA liability simply by proceeding in rem rather than in personam. Therefore, for purposes of this action, Phelan was acting as a debt collector and engaged in debt collection activity when it communicated with the plaintiffs and filed the foreclosure action.”

Click here to read more on this story.

Choosing the right attorney can make the difference between whether or not you can keep your home. A well-qualified Miami foreclosure defense attorney will not only help you keep your home, but they will be able to negotiate a loan that has payments you can afford. Miami foreclosure defense attorney Timothy Kingcade has helped many facing foreclosure alleviate their stress by letting them stay in their homes for at least another year, allowing them to re-organize their lives. If you have any questions on the topic of foreclosure please feel free to contact me at (305) 285-9100. 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

Legal Tips to Stop Creditor Harassment

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People accumulate debt for all kinds of reasons, whether it’s going back to school, having a baby, or one of life’s unexpected emergencies.  Regardless of your circumstances, being in debt can be stressful- it can be made even worse by creditor harassment.

The first step is to try to address the issue before it becomes a problem.  Do not ignore the debt and hope it goes away.  It will not.  Tell the creditor you are unable to pay the bill.  You can attempt to settle the debt at a reduced amount or request to be placed on an affordable monthly payment plan.  If these options do not work, you can write a letter requesting that the collector stop contacting you all together.

Another option is to sit down with an experienced bankruptcy attorney for a free consultation to discuss your financial situation in greater detail.  Bankruptcy automatically protects you from further collection activity and is an effective way to stop creditor’s from harassing you.

If you are struggling with debt, know your rights and what debt collectors can and cannot do.  The Fair Debt Collections Practices Act (FDCPA) limits the tactics that debt collectors can take to collect on a debt.

Under the Fair Debt Collections Practices Act, it is illegal for debt collectors to do the following:

  • Call you repeatedly
  • Contact your employer or neighbors about your debt (they may only contact them to locate you, but may not mention the debt)
  • Call you late at night or at unreasonable hours
  • Call you at work
  • Engage in deceptive conduct
  • Calling you without disclosing their identity
  • Use obscene, derogatory, or insulting remarks
  • Threaten arrest or loss of child custody or welfare benefits
  • Publish your name
  • Use any communication, language or symbols on envelopes or postcards that indicate that the sender is in the debt collection business
  • Threaten repossession without legal right or present intent to do so

If the collection agency has made any of these violations, you may be able to sue them for damages, your attorney fees, plus an additional $1,000.00.

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.legalzoom.com/articles/got-debt-stop-creditors-from-harassing-you-with-these-few-legal-tips

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

What Bankruptcy Can and Cannot Do

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Bankruptcy can be used as a powerful financial tool to eliminate debt and allow you to push the restart button on your finances  However, filing for bankruptcy does not eliminate all debts and before you file it’s important to know which debts will be discharged and which ones will remain.

Here are some things filing for bankruptcy can do:

Eliminate credit card debt and other types of unsecured debt. Your credit card debt is considered unsecured debt, which means the creditor does not have a lien on any of your property and cannot repossess any items if you fail to pay the debt. This is the exact type of debt bankruptcy is designed to eliminate. Other types of unsecured debt include: utility bills, medical bills, personal loans, payday loans, etc.  Most debts are unsecured.  Primary exceptions are home and auto loans, which are almost always secured.

Stop creditor harassment and collection attempts. The Fair Debt Collections Practices Act (FDCPA) limits the tactics that debt collectors can take to collect on a debt.  When you file for bankruptcy, the automatic stay immediately goes into effect and stops creditors from having any sort of contact with you.  They must now communicate only with your attorney.

Here are some things bankruptcy cannot do:

Eliminate child support and alimony payments. Child support and alimony payments cannot be discharged in bankruptcy. You will continue to owe these debts in full.

Eliminate other non-dischargeable debts.  These include debts for personal injury or death caused by intoxicated driving, fines and penalties imposed for violating the law, etc.

Eliminate student loan debt, except in very rare circumstances. Student loans can be discharged in bankruptcy only if you can show that repaying the loan would cause you “undue hardship,” an extremely difficult standard to meet. You must not only be able to show you cannot afford to pay your loans right now, but that you have very little likelihood of ever being able to repay your loans in the future.

Prevent a secured creditor from repossessing property. A bankruptcy discharge eliminates debts, but it does not eliminate liens.  So for secured debts, where the creditor has a lien on your property (and can repossess it if you do not pay the debt), bankruptcy can eliminate the debt, but it cannot prevent the creditor from repossessing the property.

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

Federal Trade Commission Bans Three Scammers from Posing as Debt Collectors

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A settlement has been reached with three defendants who allegedly posed as lawyers and falsely threatened to sue consumers, even have them arrested for failing to pay on debts they did not owe. The settlement resolves an FTC complaint filed in July 2017, alleging that the defendants told consumers they were attorneys or calling from a law firm and that a lawsuit had been filed or would soon be filed against them for an unpaid debt.  We originally wrote a blog on the topic, entitled: FTC Shuts Down Debt Collector for Allegedly Threatening Lawsuits.

The FTC alleged the defendants Hardco Holding Group LLC, S&H Financial Group Inc. and Daryl M. Hall (DBA- Alliance Law Group) threatened consumers with prison time and claimed police would show up at their home and arrest them if the debt was not paid.  The threats and harassment on the so called, “phantom debt” are all a violation of the Fair Debt Collection Practices Act (FDCPA).

According to the settlement order, the defendants are banned from ever participating in debt collection activities, buying or selling consumer or commercial debt, and trading in consumer information related to a debt. They are also prohibited from making misrepresentations about any product or service, profiting from consumers’ personal information obtained from any debt collection activities, and failing to dispose of consumers’ information properly.  The order imposes a $702,059 judgment that will be partially suspended upon the surrender of certain assets.

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, Debt Relief, Foreclosures, Timothy Kingcade Posts

Motion Denied After Creditor Attempts to Reopen Miami Bankruptcy Case and Seize Home

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Managing Shareholder, Timothy S. Kingcade and associate Kristina Gonzalez of the Miami-based bankruptcy and foreclosure defense law firm of Kingcade Garcia McMaken, P.A. achieved a recent victory for their clients after a creditor, Bank of New York Mellon (“BONY”), attempted to re-open their 2009 bankruptcy case and compel the surrender of their Miami home.

“With this ruling, I am pleased to announce that my clients will be able to keep their home.  BONY made the decision to abandon its foreclosure efforts and enter into modification negotiations with my clients. It was seven years after my clients received their bankruptcy discharge, five years after the initial foreclosure was dismissed and only after those modification efforts proved unsuccessful that they filed the second foreclosure, based on new post-bankruptcy discharge defaults,” Timothy S. Kingcade said.

BONY waited more than a year after the second foreclosure was filed to seek to reopen the bankruptcy case, and only filed the motion when the bankruptcy debtor filed an action in District Court against the creditor’s loan servicer, Specialized Loan Servicing, for violations of the Real Estate Settlement Procedures Act and the Fair Debt Collection Practices Act.

In a consumer win for bankruptcy clients, the Honorable Laurel M. Isicoff ruled that there was “no purpose” in re-opening the bankruptcy case because the debtors’ decision to surrender the property was not binding in the subsequent foreclosure action.

Attorney Timothy S. Kingcade practices exclusively in the field of bankruptcy law, handling Chapter 7 and 13 filings and foreclosure defense cases for the Southern District of Florida.  As an experienced CPA and proven bankruptcy attorney, Timothy Kingcade knows how to help clients take full advantage of their rights under the bankruptcy laws to restart, rebuild and recover.

Miami-based Kingcade Garcia McMaken, P.A. was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade Garcia McMaken P.A. specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish.

Related Resources:

http://www.flsb.uscourts.gov/Opinions/LMI/09-30656Kurzban.pdf

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

What Debt Collectors Can and Cannot Do

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The Fair Debt Collections Practices Act (FDCPA) limits the tactics that debt collectors can take to collect on a debt.  Here are 10 things debt collectors can and cannot do.

5 Things Debt Collectors Cannot Do:

  1. Come to your place of work. It is illegal for a debt collector to come to your workplace to collect on a debt. The FDCPA prohibits a debt collector publicizing your debts and showing up at your place of work to collect on a debt.
  2. Harass you. Harassment can come in a variety of forms and include: repeated phone calls, threats of violence, publishing information about you, abusive or obscene language.
  3. Arrest you for debt. You cannot be arrested for a debt you owe.
  4. Purse you for a debt you do not owe. Incomplete or inaccurate documentation can lead to a debt collector pursuing the wrong person for payment.  The issue is not uncommon, but it is illegal.
  5. Call you at any time. It is illegal for debt collectors to call you before 8 a.m. and after 9 p.m. You can request that a debt collector stop calling you, but your obligation to pay still remains.

 

5 Things Debt Collectors Can Do:

  1. Seek payment on an expired debt. Even debts that expired according to the statute of limitations can still be requested from debt collectors.  These unsecured debts can include credit cards and medical bills.  Remember: You cannot be sued for payment on these expired debts.
  2. Pressure you. While debt collectors cannot threaten you, they can apply pressure to collect payment.  Pressure can include daily calls, frequent letters or talk about pursuing a lawsuit for payment.
  3. Sue you for payment on a debt. A debt collector can sue you for non-payment. These type lawsuits can result in wage garnishment, bank levies or both.  It is best to consult with an experienced bankruptcy attorney before you are sued or there is a judgment entered against you in regard to an outstanding debt.
  4. Sell your debt. A collector can resell debt it has not been able to collect on. So if one debt collector stops contacting you about a debt, do not be surprised if another starts.
  5. Negotiate what you owe. Because debt collectors buy debts for sometimes pennies on the dollar, they have fairly large profit margins if they collect the original amount owed. This gives them more flexibility in negotiating payment. You may be able to negotiate a settlement for 25% or 30% of what you originally owed.  Remember, to get the agreement in writing so you have proof that the amount paid was all that was required in the settlement.

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.

Related Resources:

https://www.nerdwallet.com/blog/finance/things-debt-collectors-cannot-do/

 

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, Credit, Debt Relief, Timothy Kingcade Posts

How do you know if it’s the IRS Contacting You?

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When the IRS contacts you, their first form of communication is through the U.S. Postal Service.  The IRS will NEVER initiate contact though email, social media or text messages.

Here are some additional ways the IRS will contact tax payers. It is important to be aware of these so you do not fall victim to an IRS-related scam.

  • An IRS agent or tax compliance officer may call you after mailing a notice to confirm an appointment or discuss an item for a scheduled audit;
  • Private debt collectors can call taxpayers for the collection of certain outstanding inactive tax liabilities- but only after the taxpayer and their representative has received written notice;
  • Private debt collectors for the IRS must respect taxpayers’ rights and abide by the consumer protection provisions of the Fair Debt Collection Practices Act (FDCPA).

All payments should be made to the U.S. Treasury.  Taxpayers should never use a prepaid debit card or wire transfer to make a payment.  Specific guidelines to make tax payments can be found at irs.gov/payments.

IRS employees will NEVER:

  • Be hostile or insulting;
  • Demand payment without giving taxpayers the opportunity to question or appeal the amount;
  • Require a specific payment method (i.e. – a prepaid debit card);
  • Threaten lawsuits, arrest or deportation for not paying;
  • Request credit or debit card numbers over the phone.

A special page on IRS.gov, “How to know it’s really the IRS calling or knocking on your door,” helps taxpayers determine if a person claiming to be from the IRS is legitimate or a scammer.

If you have any questions on this topic or are in a 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.

Related Resources:

http://www.examiner-enterprise.com/business/20170806/how-do-you-know-when-irs-is-contacting-you

 

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Debt Questions you may be Afraid to Ask

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Talking about debt can bring up all sorts of emotions, leaving some to worry in silence about their own debt or a family member’s finances.  Here some answers to some of the most common questions about debt.

Can I inherit my spouse’s or family member’s debt after they die?  This depends on the debt. The assets left behind after a death typically go towards paying off that individual’s debt.  After that runs out, the creditor typically suffers the loss.  Co-signers when it comes to student loans, mortgage debts and joint credit cards will likely be on the hook for any remaining balance.  Know the dangers co-signing a loan and make sure and carry enough life insurance to cover all of your debts.

Is there a limit to the amount of debt I can take on?  The answer is no, but it depends largely on the type of debt.  Lenders sometimes offer you more credit than you can pay back.  Think of a loan you would take out to start a new business or taking out a mortgage to purchase a new home.  Even if you qualify for the loan, be realistic about what you can afford to repay.

Can I be arrested for outstanding debt?  The answer is no.  The Fair Debt Collection Practices Act (FDCPA) bars debt collectors from harassing and threatening you with arrest or jail.  However, they can sue you for payment.  Know your rights when dealing with debt collectors and consult with an experienced bankruptcy attorney before receiving a court summons or being sued by a creditor.

If I file for bankruptcy, will ALL of my debt be erased?  Alimony and child support obligations cannot be erased in bankruptcy.  Student loans, certain tax debts and judgments against you can be difficult to get discharged as well.

Click here to read more on this story.

If you have any questions on this topic or are in a 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.