FCC Enacts New Telephone Consumer Protection Act Rule

 In June the Federal Communication Commission enacted new rules based on 21 separate petitions for consideration.  The new rules provide:

•           Telephone service providers can offer robocall blocking technologies to consumers. 


•           Consumers now have the right to revoke their consent to receive calls and text messages sent from autodialers in any reasonable way at any time. 


•           To prevent consent for unwanted calls from a previous subscriber following a reassigned number, callers will be required to stop calling reassigned wireless and wired telephone numbers after a single call. 


•           The TCPA prohibits the use of automatic telephone dialing systems to call wireless phones and to leave prerecorded telemarketing messages on landlines without consent. “Automatic telephone dialing system” is defined as “equipment which has the capacity to (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The new rule clarifies this definition includes machines with a future capacity to dial randomly, sequentially and even from a list loaded into the dialer. Human intervention — like touch screen dialing button — is not sufficient to overcome ATDS status. 


•           Consent survives when a consumer ports his number from a landline to a wireless phone.


The new rule reaffirms many of the existing FCC and court interpretations of the TCPA:

•           Text messages are calls.


•           Consent must come from the called party, not the intended recipient of the call.


•           The FTC will continue to administer the National Do-Not-Call Registry to prevent unwanted telemarketing calls.


•           Wireless and home phone subscribers can continue to prevent telemarketing robocalls made without prior written consent.


•           Autodialed and prerecorded telemarketing and information calls and text messages to mobile phones will still require prior consent.


•          Political calls will still be subject to restrictions on prerecorded, artificial voice, and autodialed calls to wireless phones, but will continue to not be subject to the National Do-Not-Call Registry because they do not contain telephone solicitations.


•           Consumers will still have a private right of action for violations of the TCPA along with statutory penalties.


These new rules will significantly restrict business’s use of autodialing technologies. Of course, enforcement will be the key to carrying out their effect.

 

www.debt-relief-law.com

866-279-9721

Student Loan Debt and Bankruptcy

A huge amount of the debt Americans carry is from student loans.  That debt today totals a staggering $1.2 trillion!  Often people find that paying back their student loan debt is an impediment to their being able to provide minimal necessities for themselves and their dependents.  Bankruptcy may be an option, but only in limited circumstances.

In order to have student loans discharged in bankruptcy, the debtor must show that it would be an undue hardship to be required to pay them.  Courts will apply various tests to determine if an undue hardship exists.  Regardless of the test applied, most courts are hesitant to discharge student loans, but if the debtor has very low income or incurred student loans from a for-profit school, the odds are better that a discharge will be granted.

One of the tests courts apply is the Brunner test.  In order to discharge student loans under the Brunner test, the debtor must meet 3 criteria:

1. Poverty.  Based upon current income and expenses, the debtor cannot provide a minimum standard of living for himself and his dependents.
2. Persistence.  The debtor's current financial circumstances will likely continue into the future for a significant portion of the student loan repayment period.
3. Good Faith.  The debtor has made a good faith effort to repay his student loans.

Again, if and only if the debtor meets all 3 criteria will the court consider a discharge under this test.

Some courts use a totality of the circumstances test to determine if student loans may be discharged.  In this test the court will look at all relevant factors to determine if an undue hardship exists.

Courts vary on this issue of whether a debtor may discharge only a portion of his student loan debt.  Many view this proposition as an all or nothing situation, i.e., the debtor will be able to discharge all of his student loan debt, or he will be able to discharge none of it.

There is a formal procedure that must be followed in order to discharge student loan debt called a Complaint to Determine Dischargeability.  The burden of proof is on the debtor to show undue hardship.

A good bankruptcy attorney will be able to help with the ins and outs of working through which tests, etc., apply in a particular jurisdiction.

www.debt-relief-law.com

Eight Things Debt Collectors Won't Tell You

Debt collectors call often and many times threaten debtors in an attempt to get them to pay a debt.  However, many of their tactics are nothing more than a smoke screen.  Below, I discuss 8 things debt collectors won't tell you.

1.  Many of Their Threats Are Just Words

"I am going to inform the creditor that you have refused to pay."  I think the creditor may have figured that out since it has referred or sold your account to a debt collector.

"I will have the sherriff arrest you."  This is not going to happen.

They will set deadlines for your payment as a threat to get you to pay.  You can bet they would take your money after the deadline.

2.  They Have to Stop Calling You at Work If You Tell Them To

If you tell a debt collector to stop calling you at work, the FDCPA requires that the calls stop.  Of course, the debt collector wants to keep calling at work because of the potential embarrassment factor.

3.  They Can't Talk to Others About Your Debt

Debt collectors can't talk to your neightbors, your boss, or any other people other than a co-signer, your spouse, or your attorney.  Of course they want you to believe that your neighbors of boss would find out about the debt in hopes you would pay to prevent them from finding out.

4.  Most Debt Collectors Have Quotas

Since they have quotas, it might be better to hold them off for a while.  It could work to get them to accept less money later in the month.

5.  You Can't Be Sued on Your Debt

Many times debt collectors are attempting to collect old debt that is outside the staute of limitations, and as result, they can't sue you to collect the debt.

6.  The Worst Thing They Can Do Is File Suit

Debt collectors won't tell you that the worst thing they can do to you is file a civil suit?  Why?  Because they have to pay attorneys, filing fees, and wait to be paid until the litigation concludes.  And, they also don't want to risk having counterclaims filed against them for violating the FDCPA.

7.  Paying Them Won't Help Your Credit Score

Debt collectors often tell debtors that they will update their credit report if they pay off the debt.  The fact is that the credit report will keep the negative information associated with the account for six years and six months from the date the debtor stopped paying.

8.  You Likely Won't Have to Pay a Dead Relative's Debt

You are not responsible for your relative's debt unless you were a co-signer or your spouse died in a community property state.  The debt collector may file a claim against the estate of the deceased if the deceased left one.  Beware when a debt collector calls to attempt to collect a debt of a dead relative.

www.debt-relief-law.com

866-279-9721

Overshadowing FDCPA Notice Requirement Results in Class Certification

In Roundtree v. Bush Ross, the United States District Court for the Middle District of Florida, Tampa Division, granted class certification based in part on a claim by the Plaintiff that the 30-day validation notice provided by a law firm representing a condo association "overshadowed" the notice by its terms.  The notice at issue stated:

Unless the entire sum is paid within thirty (30) days of your receipt of this letter, we shall proceed with appropriate actions to protect the Association's interests, including, but not limited to the filing of a claim of lien and foreclosure thereon. If a claim of lien is filed against your unit to collect the amounts stated hereinabove, you will be responsible for the cost of recording the lien ($18.50), a title search ($25.00), and certified mail ($5.00 per unit owner per address), plus additional attorney's fees of approximately $200.00.

Roundtree argued that the demand for payment within 30 days would lead the least sophisticated consumer to waive her rights under 15 U.S.C. § 1692g(b), which provides, "Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor."  The court agreed that such language as used by Bush Ross could violated section 1692g(b).

We have encountered numerous communications from debt collectors that overshadow the 30-day notice requirement.  Initial communications that demand payment or offer a settlement before the expiration of the 30 days within which a consumer may request validation most likely violate section 1692g(b) by overshadowing the right to request validation within 30 days of the communication.

www.debt-relief-law.com

866-279-9721

Robocalls--Stopping An American Pandemic

      America is in the midst of a pandemic. This pandemic is the flood of robocalls Americans receive on a daily basis. According to the FTC, it receives over 200,000 complaints per month about robocalls.

     What are robocalls? The FTC defines “robocalls” as follows:

Robocalls are unsolicited prerecorded telemarketing calls to landline home telephones, and all autodialed or prerecorded calls or text messages to wireless numbers, emergency numbers, and patient rooms at health care facilities.

     So, if you get a call to your home phone that is a prerecorded message from a telemarketer, the call violates the Telephone Consumer Protection Act (“TCPA”). And, if you get an autodialed call, prerecorded call, or text from a telemarketer on your cell phone the call or text violates the TCPA. And, federal courts have now expanded the coverage of the TCPA to also apply to debt collectors.

Because of modern telephone technology that utilizes the Internet robocalls can be made from anywhere in the world. In addition, modern technology also allows robocallers to “spoof” their number on caller id by giving false numbers. This makes catching and punishing robocallers much more difficult. And, because they are almost beyond the law, many robocalls are scams meant to separate people from their money.

     For instance, many offshore casinos text offers to cell phones. Or, scammers call and threaten people with jail time for a debt that in most instances the person doesn’t owe.

What to do? First, get your number registered on the national do not call registry. Although many of scammers could care less and will violate the do not call prohibition, other legitimate telemarketers will obey the prohibition. Second, do not answer your phone if you don’t recognize the number. Many times scammers will leave a voicemail, and on occasion, this can be used as proof against them. However, if you do answer a robocall, hang up. Do not press any number to get removed from their list. Third, file a complaint with the FTC at donotcall.gov. Fourth, if you have gotten a number of these robocalls, contact a consumer law attorney. The TCPA provides that a victim of a robocall may receive $500 per call in damages from the robocaller, and up to $1500 in damages if the violation is willful. Fifth, block the number. This may help somewhat, but do not be surprised to get another call from the same offender using a different number. Sixth, consider using a free robocall blocking service such as Nomorobo.

     This pandemic can be brought under control if consumers are educated about what they can do in reaction to this constant annoyance. However, it will not be easy or automatic.

www.debt-relief-law.com

866-279-9721

Have You Been Sued by a Debt Collector?

If you have been sued by a debt collector in Tennessee or Kentucky, you can fight back.  We have successfully defended and brought counterclaims against Midland Funding, Midland Credit Management, LVNV Funding, CACH, Portfolio Recovery, and many other debt collectors.

There are powerful federal statutes that we can use to your advantage.  These include the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Telephone Consumer Protection Act (TCPA).

In addition, both Tennessee and Kentucky have very effective consumer protection acts, which can be used to fight off debt collectors.  And, in Tennessee, debt collectors have to be licensed before they can lawfully attempt to collect a debt.

Many debt collectors violate the law when they attempt to collect debts.  The most common violations include:

• Adding unlawful interest and fees to debt they have purchased
• Calling incessantly
• Calling before 8:00 a.m. or after 9:00 p.m. local time
• Calling at work after being notified that your employer does not allow such calls
• Directly contacting you after you have informed the debt collector you have a lawyer
• Threatening criminal charges
• Being overly rude and abusive on the telephone
• Suing on debt that is outside the statute of limitations
• Using recorded (robo) calls to your cell phone
• Falsely reporting the size of your debt to credit bureaus
• Failing to conduct a thorough investigation when you dispute a debt with a credit bureau

If you have been the victim any of these or anything else you think may be a violation of law give us a call at 866-279-9721 or visit our web site at www.debt-relief-law.com.  We never charge a fee for a consultation.  Learn what your rights and options are.  Don't just give up and give in.

     www.debt-relief-law.com

Filing Proof of Claim on Time Barred Debt in Bankruptcy Case Violates FDCPA

In Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), the Eleventh Circuit Court of Appeals held that filing a proof of claim in a Chapter 13 bankruptcy case on debt that was outside the statute of limitations may violate the FDCPA.  This holding has not been adopted by all circuits, but it is, in my opinion, the correct application of the law.  Logic dictates that if a debt collector could not sue on a time barred debt, it should not be able to collect on the debt in a Chapter 13 case.

The Seventh Circuit in reviewing the issue found that the Bankruptcy Code and FDCPA could both be applied, and that neither the Bankruptcy Code nor the FDCPA trumps the other.  See Randoph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004).  A recent ruling in the Southern District of Indiana held that the debt collector's motion to dismiss should be overruled and the debtor's FDCPA claim could go forward where the debt collector had filed a proof of claim on a time barred debt.  Patrict v. Quantum3 Funding, LLC, No. 1:14-cv-00545-TWP (Dist. Ct. S.D. Indiana 2015).  But the court in In re Poteet held just the opposite.  In re Poteet, No. 08-14936, Adv. No. 11-1081 (E.D. TN. 2011).

It will be interesting to see how the law develops on this issue.  You can bet there will be more FDCPA claims filed against debt collectors who file proofs of claim in bankruptcy cases.

www.debt-relief-law.com

866-279-9721