Creditor Harassment and FDCPA

Published on: September 1, 2012

I’ve just been served, what do I do?

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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Published on: September 1, 2012

The Telephone Consumer Protection Act (TCPA) is a very Sharp Sword Wielded by the Knowledgeable Florida Consumer

By Christie D. Arkovich, P.A.

Do this to Stop Calls to your Cell Phone.

Did you know that a debt collector cannot call your cell phone without express consent to do so? And if this occurs, the cost of a violation is $500 per call, triple if it is a willful violation.

It’s pretty easy to get up to $15,000 – $20,000 or more in settlement of damages under the TCPA. Our law firm settled two cases in the past two weeks exactly like this. One of the clients advised that he received seven times more than he thought he would. The second client remarked that when he came to see us about a debt collection problem he was having, he thought he would have to pay us. Instead we wrote him a check. A big check.

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Published on: July 21, 2012

It’s now Open Season on Mortgage Servicers in Florida!

By Christie D. Arkovich, P.A.

In a strong opinion favoring Florida homeowners, the Eleventh Circuit slammed the door in the face of debt collectors and mortgage servicers in foreclosure cases making it abundantly clear that calling homeowners multiple times in one day after they have hired an attorney to represent them, using abusive and offensive language and lying about foreclosure sale dates and other unscrupulous behavior would no longer be tolerated. In Birster v. American Home Mortgage Servicing, Inc. Case no. 11-13574, (11th Cir. July 18, 2012), the Court said no more when it reversed the Southern District of Florida who had ruled for the mortgage company.

I urge all homeowners who have suffered abuse at the hands of their mortgage servicer (which frankly is most all prospective clients I speak with) contact an attorney immediately – the protections afforded by the FDCPA have a one year statute of limitations, under the FCCPA it is extended to two years. If you already have an attorney, print out this blog, or tell your attorney about this brand new case so he or she can now use this powerful tool in the defense of your case. We sure plan to.

You may be asking why is this case so important?

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Published on: June 4, 2012

Common student loan collection violations in Florida

By Christie D. Arkovich, P.A.

graduates student loan debt.jpg Debt collectors excel at taking advantage of student loan borrowers by misrepresenting the law and options available to borrowers.

Common violations we see in Florida are:

1) Misrepresenting that the collector may use federal powers such as Social Security offsets or administrative garnishment of wages;

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Published on: June 3, 2012

Student Loan Debt Collectors = Big Business

By Christie D. Arkovich, P.A.

student loan debt bubble.jpg For the first time ever, student loan debt has surpassed credit card debt as student loan debt reaches the $1 trillion mark per a recent Bloomberg article. Student loan debt collection has become big business. Contracted student loan debt collectors’ profits surpass $1 billion in 2011 alone! Little wonder when these private contractors make commissions as high as 20% or even 30% after a loan goes into default. Blackwater should consider expanding their profitable business from military contracting to include student loan collection work.

Who knew collecting debts from poor students could be so profitable. Bloomberg News reported last month that approximately 5 million federal education loans are in default.

What most students or graduates don’t know is that the government hires private companies as debt collectors for this defaulted student loan debt. And these debt collectors often ignore the law when doing so. FDCPA violations abound. Debt collectors are the subject of more complaints to the Federal Trade Commission than any other industry. We recommend student loan borrowers go on the offense and hire law firms to go after these debt collectors. These cases are handled on a contingency fee basis with no fees up front.

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Published on: May 19, 2012

Surrendered your house in Florida and still getting letters?

By Christie D. Arkovich, P.A.

chained to house.jpg Many bankruptcy debtors in Florida are understandably confused when they surrender their home in the bankruptcy, but are still receiving various dunning letters.

First, it is important to understand that the Bankruptcy Code does not have a mechanism in place to provide for the actual transfer of the real estate to the mortgage company, at least not in a lien theory state like Florida. So in order for the home ownership to transfer legally to the mortgage company, one of three things must occur; 1) a foreclosure sale; 2) a short sale; 3) a deed in lieu is signed by the debtor and accepted by the mortgage company; or 4) a quit claim to another party which is recorded.

So a homeowner may still receive letters and remain liable for certain things even after a bankruptcy is filed:

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Published on: March 15, 2011

Freezes of Wells Fargo Bank Accounts for Bankruptcy Debtors

By Christie D. Arkovich, P.A.

wells fargo.jpg The Middle District of Florida, Tampa Division, upheld Wells Fargo’s practice of freezing bank accounts of Chapter 7 bankruptcy debtors. In re Young, 439 B.R. 211 (Bankr. M.D. Fla. 2010). In ruling that the administrative freeze was not a violation of the stay, the Court denied sanctions against Wells Fargo.

We are advising our bankruptcy clients to move their bank accounts (checking, savings, CDs etc.) to other banks when filing a Chapter 7 bankruptcy. To our knowledge, Wells Fargo (and Wachovia which was merged into Wells Fargo) is the only bank that has taken this position. This avoids panicked calls from our clients when their bank account is frozen and they learn that it may take 30 days for the trustee to abandon any non-exempt interest in the account.

For the time being, this ruling is only applicable to Chapter 7 cases. The Court in Young unequivocally stated that its holding should only apply to Chapter 7 cases and that it would view an administrative freeze on accounts in a Chapter 11 or 13 as a violation of the automatic stay. The Wells Fargo administrative policy may be limited to accounts of $5,000 or greater, but I wouldn’t trust that they won’t freeze an account with less. The reasoning behind them holding the money for the bankruptcy trustee to decide what to do with it applies when a bank account has less than $1,000 in it due to the low personal property exemptions in the State of Florida.

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Published on: March 1, 2011

Consumer Debt Collection Complaints Continue to Rise

By Christie D. Arkovich, P.A.

Complaints regarding creditor debt collection agencies, debt buyers, collection attorneys, and many mortgage servicers generate more complaints to the Federal Trade Commission (FTC) that any other industry. In additon to the Fair Debt Collection Practices Act (FDCPA), Florida consumers can take advantage of the Florida Consumer Collection Practices Act (FCCPA). One key difference is that the FDCPA applies only to debt collectors and it excludes its protections when the original creditor is collecting its own debt. In Florida, the FCCPA protects consumers from both debt collectors and original creditors. Another reason why Florida’s law is more expansive is that extends the $1,000 in statutory damages to multiple violations allowing for a greater recovery than the one time $1,000 available under the FDCPA regardless of the number of violations.

Complaints of illegal debt collection and abusive tactics rose from 5,064 in 1999 to 26,652 in 2009. Higher levels of unsustainable debt is part of the reason for such a significant increase, but more likely it is due to the fact that the collections industry makes millions of autodialed calls every business hour.

More attorneys are stepping up in an effort to enforce consumers’ rights by filing FDCPA and FCCPA lawsuits. Our law firm began taking FDCPA and FCCPA cases at the beginning of 2010 as a natural offshoot of our bankruptcy practice. Many more bankruptcy attorneys are recoginizing that the overly aggressive actions by creditors are splitting families, causing job losses and significant emotional distress in the more egregious cases.

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Published on: January 13, 2011

Can I Sue a Debt Collector For Calling My Cell Phone?

By Christie D. Arkovich, P.A.

I don’t know about you, but I always have my cell phone with me. While fortunately I do not have debt collectors calling me on my cell phone, a lot of my clients here in the Tampa Bay area are troubled by this every day. Many report receiving several calls per day from the same debt collector. Come on, if a person doesn’t have the money in the morning, are they really going to have it in the afternoon, or even an hour later? Realistically, these calls are meant to do one thing: harass you into paying the debt.

Collectors know this – that’s why they call our cell phones.

Is it legal for collectors to call our cell phones?

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