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consumer-protectionMost of our debt collection laws in Florida apply only for consumer debt, not business debt.  Sometimes the answer is not quite clear as to what type of debt is involved.  What if for instance you operate a business and took out a loan, but signed a personal guarantee.  Sometimes, that personal guarantee will have language referring to the debt being for personal, family or household use.  That would likely make the guarantee a consumer debt.

By the way, that terminology comes from the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. Section 559.55-559.77 which defines a consumer debt as a debt incurred for “personal, family or household use.”

What happens if you buy a house, live in it for years, but then ultimately end up moving and renting it out?  Or you rent out a room while you are living there?  Commericial or consumer debt?

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Both tenants and third party investors should be very happy that a new federal law goes into effect on June 23, 2018, that protects tenants in foreclosure.  Basically additional notice is required and the tenants even have the right to remain in the unit for the remainder of the lease.  A copy of the law (that had previously expired in 2014) is at the link below for the specifics:

While titled the “Economic Growth, Regulatory Relief, and Consumer Protection Act,” the Act is generally called “the Crapo bill” after its lead sponsor, Republican Senator Mike Crapo of Idaho. With a few exceptions discussed below, the changes either carve out exceptions from compliance with consumer statutes or codify consumer protections that at least certain industry players are already following on their own.

Tenant Protections After Foreclosure of Landlord’s Property

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Servicemembers’ Protection from Foreclosure

The Servicemembers Civil Relief Act, 50 U.S.C. § 3953(c), provides protections from foreclosure for covered personnel where their residential mortgage loans were extended prior to their active duty. Originally this protection extended for only 90 days after the person left military service, but this period was extended to nine months and later to one year, but with a sunset at the end of 2017. Section 313 of Public Law No. 115-174 restores the one-year period and eliminates the sunset, making the one-year period permanent.

  • This is good news for our armed forces who are facing foreclosure now or in the future.  The one year protection has been re-established after it expired last year and has been made permanent!
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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgSomeone asked us recently:  where does someone start to make sense of it all – when mounting student loans are crushing them and they don’t know what to do.

  • That’s exactly where our clients stand, there is so much information out there, some accurate, some not so much, and it’s hard to tell what even applies to your specific loans.
  • Then we have student loan servicers who vary in their training of their customer service reps – you’ll get 3-4 different answers when you call for example.
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school-bus-driver
Desperate mother, teacher, bus driver and student loan captive for life.

This is the actual signature line of a client who we are helping with her federal student loans.

The short version of her story:  she paid 10 years of consecutive and timely payments only to be told that she had to start all over again with ANOTHER 10 years of payments simply because she had the wrong loan type — and NO ONE at her servicer ever told her this.

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How much is too much?  Unfortunately, the Fair Debt Collection Practices Act and its Florida counterpart do not specify a particular number of calls per day that a creditor can make when trying to collect a debt.

An older Florida case is somewhat illustrative in finding the answer.  In Story v. J.M. Fields, Inc., 343 So. 2d 675, 677 (Fla. 1st DCA 1977), the Court looked at what conduct was considered harassing, such as:  a) the frequency of the creditor’s calls; b) the number of calls; c) the time of day when calls were received (whether during normal business hours); and d) whether the purpose of the calls was appropriate, such as calling to i) remind the debtor of the debt; ii) determine the reasons for non-payment; iii) discuss a plan for making payments.

My rule of thumb that I like to use is if a creditor calls in the morning and talks with you, and then calls again the same day, that only works if you said something like I may get paid at lunchtime and might have some money for you.  Otherwise, I doubt that anything changed that day and there was no reasonable reason for a second call the same day other than to harass you.

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgThe New York Times today in an article titled “Education Department Unwinds Unit Investigating Fraud at For-Profits” shows a department charged with investigations of schools such as DeVry, Corinthian, Everest, ITT, IADT etc., has only three employees now that it has all but been shut down. In addition, the unit’s members are now required to obtain special approval to contact any outside groups including the CFPB, state attorneys general, etc. who had been partners in identifying and prosecuting cases.  This alone has halted any investigative work by the three remaining employees.   So bottom line, for-profit schools are free to engage in predatory activities once again per the DOE.

We warned our clients a few months back when an Inspector General’s report came out in December 2017 that highlighted the reduction of staff of the new direction that that the DOE was taking.

We reiterate now while it is still possible to file Borrower Defense to Repayment applications for fraud by for-profit schools, a better approach may be to enroll in an income based plan with debt forgiveness – but there are several different programs and it is important to choose the right one for best results.  However, they have “staying power” and the current administration is in favor of Income Driven Plans.

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bank-owned-foreclosureThere a lots of reasons a debtor needs to file a bankruptcy.  However, debtors should be warned that they are likely giving up valuable rights to fight a foreclosure of their home if they do so — unless they reaffirm the mortgage.  Over the last few years, many debtors elected not to voluntarily reaffirm an underwater home — this would allow them to be personally sued for any deficiency balance even after the bankruptcy was over.  Another problem is the decision to reaffirm sometimes comes up before a loan modification review is complete and debtors aren’t sure whether reaffirmation is in their best interest.

Bankruptcy case law has been building in various Florida jurisdictions over this conflict.  Many courts have seen this as an issue of debtors “having their cake and eating it too” when debtors are released of their liabilities under the mortgage, but yet they can continue to fight the foreclosure and live rent free.

In response to this dilemma, Governor Scott just signed a bill on March 26, 2018 that stops defendants from defending a foreclosure if they have previously agreed in bankruptcy to surrender the property to their lenders.

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oopsWould you know what to do if the Social Security Administration mailed you a letter stating that you have been overpaid and that you owe the government tens of thousands of dollars?  No problem, this oversight can be eliminated in a bankruptcy filing.  My colleague, attorney Jonathan Ginsberg in Atlanta, Georgia practices both bankruptcy law and Social Security law and I asked him to answer the question “can bankruptcy help you if you owe Social Security for a disability overpayment?”  Here is what Jonathan says:

Surprisingly, the answer is yes – as a general rule Social Security disability overpayments are dischargeable in bankruptcy.  You can use Chapter 7 to wipe out overpayment claims or Chapter 13 to pay back these claims as general unsecured debts.

Why Social Security Disability Overpayments Happen

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We have rented out our second conference room as an office and need to sell the furniture by April 1 if possible.  There is an antique oak round table, with two leaves to extend its size, an antique oak bureau and four small chairs.  Two single file cabinets free to a good home, fair condition.   May be able to deliver if local to South Tampa.  Call our office at 813-258-2808 or email me at christie@christiearkovich.com if interested.  Thanks!

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