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do not call.jpgIn Florida, the right to revoke calls to a consumer’s cell phone is alive and well. Debt collectors who continue to call these cell phones after being told not to are exposing their companies to damages of up to $1,500 per call. That adds up quick.

So don’t just ignore or block the calls. Take a call. See who it is. Write down who it is, and tell them not to call your cell phone again. Write that down along with the date and time of the call. Then keep a log of calls or take screen shots of continued calls. You don’t have to answer them all. Just the fact they are continuing to call is good enough. The good creditors will follow the law and stop calling. Problem fixed. For the ones that keep calling and ignore your directive not to call their cell phone, we’d like the opportunity to go after them.

Here’s some current law on the right to revoke consent to call (I recommend telling them not to call and writing down the date and time and who you spoke to — even if you didn’t give them permission to call in the first place).

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The absolute deadline for filing BP oil spill claims is June 8. Now that we see BP paying on these claims again, we don’t want anyone to miss this deadline. Remember the trickle down effect applies to most businesses in the affected counties. We help those located around Tampa Bay. Arkovich Law

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debtfreetoday.jpgBankruptcy filings are down substantially in 2014 to only 910,090 which is the lowest number since 2007. Yet at the same time, people are still losing their homes especially in Florida, wages are flat or down and the cost of living continues to rise other than gas which isn’t too bad).

So why are the bankruptcy filings down? Well in some areas, the economy is picking up. Interest rates to carry debt remain low. But overall, I think some of this has to do with the fact that people cannot even afford to file. Many folks in the Tampa Bay area come to us to file when they receive a tax refund – but this year, many people had their tax refund intercepted due to defaulted federal student loans.

There is a way to file bankruptcy on the creditor’s dime that no one really talks much about: talking to an attorney about pursuing debt collection violations. Not all bankruptcy attorneys do this, so you need to talk with someone who actually sues for creditor violations plus files bankruptcy.

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The Consumer Financial Protection Bureau (CFPB) recently fined DriveTime Automotive Group, Inc. $8 million for harming customers for making harassing debt collection calls and providing inaccurate credit information to credit reporting agencies. Such a large fine underscores the importance of the consumer protection laws such as the FDCPA, the FCCPA for Florida consumers and the TCPA for cell phone calls.

These consumer statutes basically allow private attorneys to sue creditors on behalf of their clients and obtain both statutory damages and attorney’s fees. Without that, no one would be able to financially afford to challenge creditor violations.

So what were the most common violations by DriveTime that the CFPB found?

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cell phone stop 2.pngRevocation of Consent

One of the pressing issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. The TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. So that raises two threshold questions: can prior express consent be revoked and, if so, what constitutes valid revocation?

There is a split in authority on whether consent can be revoked under the TCPA, but a number of courts are ruling that the conclusion that consent is revocable. The U.S. Court of Appeals for the Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. Applying the common law concept of consent, the court reasoned that a right to revoke is not inconsistent with prior FCC decisions. Several courts have followed the Third Circuit’s lead, including the Eleventh Circuit (which governs the State of Florida) in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. Mar. 28, 2014).

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judgment.jpgIn the past year, Floridians have been hit with ten thousand or more deficiency lawsuits by Dyck-O’Neal, a collector hired by Fannie and Freddie to go after unfortunate homeowners. Many defaults have been obtained against homeowners which should not have occurred due to lack of personal and/or subject matter jurisdiction. Many folks did not even know these additional lawsuits have been filed against them. A recent New York Times article recently addressed this focusing on the ability of Dyck-O’Neal to go after deficiencies even in cases in which the underlying foreclosure action was suspect.

Some defenses raised by defense counsel in these cases are now hitting the appellate courts. In one such case decided May 1, 2015, Reid v. Compass Bank, 1D14-930 (Fla. 1st DCA May 1, 2015), the First DCA affirms the rule that a plaintiff in a foreclosure case cannot file a new lawsuit to seek a deficiency if the foreclosure court reserved jurisdiction for the purpose of entering future orders relating to the foreclosure.

“Notwithstanding the fact that First Federal Savings supports the argument that a party is not entitled to pursue an action at law on a promissory note where that party includes a prayer for a deficiency judgment in its foreclosure complaint and the trial court reserves jurisdiction to enter a deficiency judgment, we have determined that affirmance is warranted in this case based upon the circumstances presented.”

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bp.bmpI have great news to report on our BP claims! We now have five claims being paid out in the last month alone! These of course have been pending all through the appeals process so it’s been a long wait.

The absolute deadline for filing a new claim is June 8, 2015. it’s not too late and we, like many firms, are accepting new claims for this last month. If we’ve spoken with you in the past but you hadn’t gotten all the paperwork to us to file a claim, it’s not too late, but you need to call us immediately.

Rick Premiums Greatly Enhance Awards:

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Great news for Florida consumers with student loans! On April 21, 2015, the Middle District of Florida, Tampa Division, Bankruptcy Court issued a ruling on behalf of our client that a National Collegiate Student Loan Trust would be barred from pursuing student loans in Florida because the five year statute of limitations had expired. In doing so, the Court entered Final Judgment in favor of our client.

However, NCSLT apparently did not like this ruling and has subsequently filed an appeal. As neither party has submitted briefs yet, the outcome of the appeal remains unknown and should be resolved in approximately 4-6 months or less.

These clients owe a devastating $161,000 in private student loans. They also owe only about $20,000 in federal loans for which payments are current in a repayment program. However, prior to hiring us, these clients were not presented with realistic payment terms from the private lender. The household income for this family of four is only $40,000 as they have two young children and the wife stays at home to care for them.

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student loan reform.jpgToday, a legislator introduced a bill to treat student loan debt as other unsecured debt in a bankruptcy filing. This would be huge! As everyone knows, a bill isn’t a law and it could be awhile, but if this gains steam, we may have some relief for graduates over the past 20 years who are facing student loans that the new governmental forgiveness programs don’t cover.

Rep. John K. Delaney, D-Md., introduced the Discharge Student Loans in Bankruptcy Act (H.R. 449) on January 22, 2015. The bill itself can be found here. This link can also be used to track its progress through the House, Senate and finally the President if it makes it through. I just checked the link and the text of the bill isn’t up yet, but it should be in a couple days. I’ll be curious to see how it is worded and other legal commentators’ opinions of its likelihood of passage.

Presently, the burden to discharge student loans is not easy. The Brunner standard of what it takes to show an undue hardship is very difficult to meet. However, this 1987 case is starting to come under fire because of the impossible standards imposed. Over the past year, there have been approximately a dozen federal cases providing a framework for a new standard allowing for discharge of student loan debt. Brunner has some competition now.

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EraseMortgage_iSTock.jpgWe are still able to strip second mortgages in a Chapter 7 bankruptcy here in Tampa Bay. However, there is a risk that the window of opportunity may be closing. Bank of America has filed several challenges to the U.S. Supreme Court in the past couple of years. Two of these cases, the U.S. Supreme Court has granted certiorari and has agreed to hear them: Bank of America v. Caulkett, Case No. 13-1421 and Bank of America, v. Toledo-Cardonna, Case No. 14-163. Currently, we are in the only Circuit that allows the stripping of second mortgages and HOA liens in a Chapter 7. The only requirement is that the home be worth less than the first mortgage at the time of filing. Once stripped, the second mortgage lien is gone forever, unless the bankruptcy discharge is revoked which is very rare.

Although we can strip an HOA lien, they are a little different in that they will likely have to be paid on transfer of the property by sale or death, even though avoided. Several cases out of the Southern District of Florida have addressed this in the past year. In re Sain, 2013 Bankr. LEXIS 4564 (Bankr. S.D. Fla. Oct. 29, 2013); In re Sain, 2014 U.S. Dist. LEXIS 12219 (S.D. Fla. Jan 31. 2014) and Stonebridge Gardens Sec Two v. Campbell, 2014 U.S. Dist. LEXIS 7195 (S.D. Fla. 2014).

Many people are still not aware that we can strip a second mortgage in a bankruptcy. So please help spread the word to those who may be in an underwater home, barely treading water themselves. This may be a once in a lifetime opportunity to use this law to get the home back to a position where equity can be rebuilt for retirement. With property values going up, sooner is better than later.

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