Articles Posted in Creditor Harassment and FDCPA

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FDCPAFirst off, to be covered under the Fair Debt Collection Practices Act, the debt must be a consumer debt.

  • i.e. not a business debt.
  • Examples are credit cards used for personal/household items; a home loan, a student loan, a phone bill/utility bill, dishonored personal check, rent etc.
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cell-phone-handI thought I’d take a minute to share common defenses faced by consumer lawyers such as myself — and help arm consumers with just how and what they should say to stop the calls.

First, a debt collector will always deny that you ever revoked consent to call.  They will argue that you did not provide enough personal identifying information for them to verify and therefore they could not process the DO NOT CALL request.

Second, they will argue that the consumer did not specify which number he or she did not want the calls made to.

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robocallsHow many of us no longer answer our cell phone?  With all the caller ID spoofing/disguising nowadays, most people I know don’t answer, opting instead for the caller to leave a voice message.  This ensures they want to talk to the caller, and then they call back.  The caller may do the same.  I’m no different.  Until someone is added into my address book, they don’t exist.  Wasted time returning calls and listening to voice messages abounds.

Wouldn’t you like to see things turn around – and help make our cell phones useful for calls again?

The House just passed a near-unanimous bipartisan vote on the strongest anti-robocall legislation in decades.  Everyone is sick of robocalls it seems.  The Stopping Bad Robocalls Act now heads to the Senate, where similar but less comprehensive legislation was passed.  But robocallers are hard at work lobbying Senators to scrap parts of the House legislation and significantly weaken its consumer protections.  The consumer bar needs you to weigh in and insist the Senate keep key parts of the House rule intact to effectively stop unwanted robocalls.

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgOn January 31, 2019, Judge Stong of the Eastern District of New York denied the Motion to Dismiss filed by SLM Corporation, Sallie Mae, Inc., Navient Solutions, LLC and Navient Credit Finance Corp.  In this Memorandum Decision, the Court dealt a blow to the private student loan defendants when it permitted Plaintiff to proceed with its case (note a Motion to Dismiss is a preliminary motion and the case is far from over).  In re Homaidan, Adv. Pro. No. 17-01085 (E.D. N.Y. 2019).

A nearly identical ruling was made the same day in In re Tashanna Golden, Adv. Pro. No. 17-01995 by the same Judge.

These cases dealt with Tuition Answer loans which the Plaintiff alleges are not “qualified education loan[s]” under the Bankruptcy Code Section 523(a)(8)(B), and for that reason, they were discharged in his Chapter 7 bankruptcy case.  The Plaintiff argues that loans of this nature are excluded from the scope of his bankruptcy discharge and therefore any attempt to collect the debt after the bankruptcy discharge amount were impermissible and a violation of the discharge order.

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law-gavelWhat happens to the original debt when a consumer files an unlawful debt collection lawsuit?  Sometimes the creditor will file a counterclaim to force the underlying debt to judgment in an effort to turn the tide in favor of the debt collector.

Fortunately, in the Middle District of Florida there are several good recent cases that prevent this outcome.  The federal court has ruled there is no subject matter jurisdiction because there is no supplemental jurisdiction over the counterclaim based on the fact that the counterclaim is permissive and would substantially predominate over the plaintiff’s claims, and because the “set off” position didn’t support supplemental jurisdiction.  See Della Vecchia v. Ally Financial, Inc., No. 8:17-cv-2977-T-23AAS, 2018 WL 907045 (M.D. Fla. Feb. 15, 2018); Vernell v. Ally Financial, Inc., et. al., No. 2:15-cv-674-FtM-38MRM, 2016 WL 931104, at *4 (M.D. Fla. Mar. 11, 2016).

This can be an important litigation concern that could force an early and minimal settlement if it weren’t for this case law favoring the consumer.

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consumer-law-with-bkWhen you are thinking about hiring a bankruptcy attorney, what should you consider? – besides all the regular stuff like client reviews, years of practice, cost, availability, knowledgeable, friendliness of attorney and staff etc.

One thing to keep in mind is what other areas does that law firm handle and could that help you fix your situation.  As you can see from the chart above, many bankruptcy attorneys just take bankruptcy cases.  While that’s fine, most people facing a bankruptcy also have issues with their credit report, foreclosures, debt collection violations, robo calls, student loans etc.  We handle all of that.  We also have a class action team.  One consumer area we don’t handle is vehicles – I don’t know a thing about our lemon laws or other issues regarding vehicles for instance.

I’m not suggesting you hire someone who dabbles in bankruptcy to file your bankruptcy.  That is probably the worst thing you can do.  But hiring a firm that is experienced in bankruptcy plus the other issues you are facing is probably best.  We have over 25 years experience in bankruptcy plus a myriad of other consumer related issues commonly faced by our clients.

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FDCPA-ceaseThe Fair Debt Collection Practices Act (“FDCPA”) and its Florida counterpart, the Florida Consumer Collection Practices Act, (“FCCPA”) require a debt collector or creditor to cease all collection efforts once a consumer acts to preserve their rights.  But you have to ask first, and in writing by sending a cease and desist.

Under 15 U.S.C. Section 1692c(c) if a consumer notifies the debt collector, in writing, to cease further communications OR if the consumer notifies the debt collector, in writing, that he or she refuses to pay the debt, the debt collector cannot communicate with the debtor, with 2 exceptions.

  • (a) to advise consumer collection efforts will cease; or
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debt-validationAbsolutely yes.  But admittedly, the bar is pretty low for the creditor pre-litigation to satisfy their obligation.

The Fair Debt Collection Practices Act (“FDCPA”) provides that a debt collector’s initial written communication to the consumer MUST effectively convey the following information:

  • Amount of the debt;
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robocalls

While there are often legal disputes about what kind of phone system a caller is using, if you are receiving pre-recorded calls, they are usually always a violation of the Telephone Consumer Protection Act (“TCPA”).  As 2018 nears an end, there is no sign that these cases are slowing down.  The National Law Review published their case review on December 6, 2018 as to the recent case law developments.  Lots of new court opinions on what constitutes an ATDS  – automatic telephone dialing system – of course.

For more information, please view our short video prepared by Christie D. Arkovich, P.A. for tips about how you can stop these calls or obtain damages for $500 – $1,500 per call for those calls after you ask them to stop calling your cell phone.

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robocallsRobocalling case law has been rapidly evolving over the past few months.  The latest case out of Tampa’s Middle District, is the case of MELANIE GLASSER, individually & on behalf of all others similarly situated Plaintiff, v. HILTON GRAND VACATIONS COMPANY, LLC. Defendant., No. 8:16-CV-952-JDW-AAS, 2018 WL 4565751, at *5 (M.D. Fla. Sept. 24, 2018) (Judge Whittemore) (holding at summary judgment that defendant’s dialer is not an ATDS and discussing a dialer that automatically enters the number but requires a clicker agents to push the “make call button” to control the pace of the calls doesn’t alter that the clicker agent’s actions were “integral to initiating outbound calls” …  “accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process.”).

Despite this case initially looking bad for consumers, there was some good language in the case – its just that the evidence wasn’t presented in this case for the telephone system to fall under the definition of an autodialer.

“Relevant here, ACA Int’l left intact earlier FCC rulings that “the ‘basic function’ of an autodialer is to dial numbers without human intervention:” For instance, the ruling states that the “basic function” of an autodialer is the ability to “dial numbers without human intervention.” 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13.”

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