Bankruptcy November 2, 2008
 
Bankruptcy
Criminal Law
 

Paying Senior Creditors First Under the Absolute Priority Rule

In a Chapter 11 bankruptcy case for business reorganization, a bankruptcy court must only confirm a debtor's business reorganization plan ...(more)

 

House Passes the Involuntary Bankruptcy Improvement Act to Combat Fraudulent Involuntary Bankruptcy

Although seldom used, a creditor can force an individual into Chapter 7 or Chapter 11 bankruptcy by filing an involuntary ...(more)

 

Protecting Credit and Assets After a Divorce

A significant concern many couples face upon dissolving their marriage is the fate of property that was acquired jointly during ...(more)

 

The Effect of Bankruptcy on Utility Services

Filing for bankruptcy automatically triggers the "automatic stay," which generally prevents creditors from pursuing claims against debtors to collect on ...(more)

 

Bankruptcy Law In The News

Mervyns to liquidate remaining 149 stores

Banks asking for credit card debt forgiveness

Brooke Corp. and Brooke Capitol File Chapter 11 Bankruptcy

Medical Debt Sending Many Over Financial Brink

State Representative Ordered to Pay in Bankruptcy Case

Prohibited Conduct Under the Fair Debt Collection Practices Act


Enacted in 1977 and amended several times, the federal Fair Debt Collection Practices Act (FDCPA) offers consumers protection from abusive debt collection practices.  Although state laws frequently cover this issue as well, FDCPA provisions take precedence over state law.  However, in the event state law grants consumers greater protection than the FDCPA, state law will control. 
 
The FDCPA applies to debts incurred for "personal, family or household" purposes and regulates the conduct of "debt collectors."  This term is generally defined as any person who regularly collects debts for others, including attorneys.  The FDCPA outlines obligations and prohibitions applicable to debt collectors when they are attempting to collect debts.
 
Validation of Debts 
Within five days after the initial contact with the debtor, the debt collector must provide a written notice containing specified information about the debt, unless this information has already been provided or the debt has been paid.  Such information includes, for example, the amount of the debt, the name of the creditor, notice of right to dispute the debt and the effect of disputing it, etc.
 
The debtor then has thirty days to dispute the debt, or any portion of it.  The debt collector must then cease all collection activity until verification of the debt is obtained from the creditor. 
 
Harassment or Abuse
The debt collector may not engage in "any conduct, the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."  The FDCPA gives examples of prohibited conduct, including:
  • Threats of violence or harm to property or reputation
  • Obscene or profane language
  • Calling without disclosing the caller's identity and/or calling repeatedly
False or Misleading Representations
A debt collector "may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."  The statute offers examples, including:
  • Misrepresenting that the debt collector is affiliated with the U.S. government
  • Misrepresenting the amount or character of the debt
  • Threatening to take any action that is not legally possible or really intended
Unfair Practices
A debt collector may "not use unfair or unconscionable means to collect or attempt to collect any debt."  Examples given in the FDCPA include:
  • Collection of any fee, etc. not authorized in the debt agreement or authorized by law
  • Certain actions and uses related to post-dated checks, such as premature deposit
  • Communicating by post card
Permissible/Impermissible Contact by a Debt Collector
A debt collector may contact an individual by phone, telegram, mail, or in person, as long as he does so after 8 a.m., but before 9 p.m., in the debtor's time zone.  The debt collector is also required to:    
  • State he is calling from a collection agency
  • Identify the creditor and amount to be collected
  • State that the call is for debt collection
  • State that any information provided will be used for debt collection purposes
The debt collector may not:
  • Contact the debtor at work, if told the employer prohibits such calls.
  • Contact anyone who is represented by an attorney (including the debtor).
  • Contact specified third parties without the debtor's consent.
  • Continue to contact the debtor after being told not to.  The debt remains, however, and the creditor may begin a collection action in court.

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