How to file bankruptcy and get discharged from debts

November 26, 2012

By Dan Marshall

People who are insolvent and want to regain their lost financial stability can opt to file bankruptcy so as to get debt relief. Basically, bankruptcy is a legal procedure mandated by the US Federal Court of Justice in order to safeguard both individual citizens as well as corporations from the vicious cycle of debt. Hence, debtors willing to file bankruptcy should be aware of the basics before moving forward.

What is BAPCA?

BAPCA is the abbreviation of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Ever since the government enacted this amended law, filing for bankruptcy has become a lot tougher. Under this new law, debtors must proceed with their bankruptcy petition with the help of a registered attorney. Moreover, the attorney has to validate all the information provided in the bankruptcy petition as authentic with the help of relevant proofs.

Two most common types of bankruptcy

Here are 2 of the most popular types of bankruptcies known as chapters:

  1. Chapter 13 – Under this type of bankruptcy, debtors petition to the court requesting them to approve a suitable debt repayment plan. The court agrees to oblige with the requests after being convinced of the debtor’s inability to make the payments, even if he/she has a steady source of income.
  2. Chapter 7 – Under this type of bankruptcy, debtors will be able to get rid of all of their unsecured debts barring only the secured ones. The court may liquidate a part of the petitioner’s assets in order to meet the obligations of the creditors. The court will liquidate only the non-exempt properties in this regard.

Bankruptcy – What is the standard process to file it?

Here is the most preferred way people choose to go ahead with their bankruptcy petition:

  1. Working with a bankruptcy attorney – Bankruptcy is a complex legal procedure and so, the tasks involved in the entire process require a lot of paperwork to be done, besides filing the petition and other issues. People are allowed to file for bankruptcy on their own but it will invite a lot of risks and a single mistake may delay the case, in the meantime complicating the matter beyond repair.
  2. Type of bankruptcy – Debtors need to decide the type of bankruptcy case they are going to press for in the court. Hence, they must consult bankruptcy attorneys for advice whether to choose chapter 7 or chapter 13 bankruptcies based on their individual financial condition.
  3. Enrolling for credit counseling session – It is compulsory for the debtors to go through a credit counseling session held by government certified credit counselors. Moreover, the course too should be an approved one.

Lastly, debtors have to meet the creditors and their attorneys as a part of the bankruptcy process. The meeting must be held after 30 days have passed since the date of filing the bankruptcy petition. Bankruptcy petitioners have to take an oath during such meetings. Everything in the meeting gets recorded for future reference.


Wrong Number” Calls from Debt Collectors

November 25, 2012

Have you ever received calls from debt collectors for a person completely unknown to you? These “wrong number” calls are usually the result of collection calls being made to the person who owned the telephone number immediately prior to you. What do you do about these wrong number calls? My advice is to tell the debt collector that you are not the person that she/he is trying to contact and ask them to stop calling. However, this common sense approach often does not work because the debt collector does not believe the person that she/he spoke with. The collecting caller may believe that the person called is actually the true debtor and is trying to avoid the call by saying that it was a “wrong number.” If the debt collector keeps calling after being told that they have the wrong number, in this author’s opinion, the continued calls constitute harassment under the Fair Debt Collection Practices Act.

In addition, the “wrong number” calls could be in violation of the Telephone Consumer Protection Act (TCPA). The TCPA prohibits calls using a pre-recorded or artificial voice to deliver a message to a consumer unless there is a previous business relationship or consent for the call by the consumer. With most calls made by the debt industry to a consumer, the previous business relationship between the creditor and the consumer is sufficient to allow the debt collector to utilize a pre-recorded message. However, with wrong number collection calls, such a previous business relationship is lacking. Bringing suit under the TCPA premised on wrong number debt collection calls can result in substantial claimed damages. The TCPA provides for a statutory penalty of $500.00 per call and that amount increases to $1500.00 per intentional violation.

For more information, visit us at Stop Debtor Harassment or Consumer Rights Orlando.


Consumer Protection from Unwanted Cellphone Calls

November 15, 2012

Recent headlines have drawn attention to a prevalent consumer complaint – unwanted cell phone calls. A class action lawsuit against Papa John’s involves franchises that sent customers a total of 500,000 unwanted text messages in early 2010 offering deals for pizza. Some of these texts were sent during the middle of the night. The lawsuit is based upon the Telephone Consumer Protection Act of 1991 (TCPA).

The TCPA was enacted into law to “protect the privacy interests of residential telephone subscribers” by placing certain restrictions on the use of unsolicited, automated phone calls made by telemarketers who were “blasting” out advertising by the use of both “facsimile machines and automatic dialers. An essential requirement of a TCPA claim is that the phone call be sent to a cell phone by use of auto dialing technology which either (1) utilizes a so-called “random or sequential number generator” or (2) automatically leaves a prerecorded, as opposed to a live, message.

In the context of debt collection practices, creditors have contacted consumers by cell phones on a regular basis. If a debt collector is found to have violated the TCPA, the consumer is entitled to recover statutory damages of $500 per call, and up to $1500 per call if the violation is willful, without any cap on damages. Claims under the TCPA by consumers against debt collectors are frequently joined with actions brought under the Fair Debt Collection Practices Act.

For more information, visit us at Consumer Rights Orlando.


What is a “false, misleading and deceptive” communication under the Fair Debt Collection Practices Act?

November 10, 2012

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.”   Among the abusive tactics that the FDCPA sought to eliminate was the proscription of “false, misleading and deceptive” communications from debt collectors to consumers.

Consumer, Paula Maple, took out a loan from Midland Funding, LLC successor in interest to Bank of America, N.A., for personal, family, or household services.  Sometime thereafter the debt was transferred to the law firm of Sprechman & Associates, P.A. for collection.

On March 6, 2012, Sprechman & Associates, P.A. sent a letter to Paula Maple which stated in part:.

“If your client fails to make payment or fails to make appropriate arrangements they will leave us with no choice but to subject all of their assets to actions to collect this Judgment.”

Paula Maple filed a lawsuit in United States District Court, Middle District of Florida, against Sprechman & Associates, P.A. alleging, among other things, that the statement in the letter were false given the numerous exemptions to executions on judgments.

Paula Maple also alleged in her lawsuit that the letter sent to her by Sprechman & Associates, P.A. violated the Fair Debt Collections Practices Act and the Florida Unfair and Deceptive Practices Act.

Whether a collection letter or other communication is false, deceptive, or misleading under the FDCPA is determined from the perspective of the objective least sophisticated consumer.  Under this standard, collection notices can be deceptive if they are open to more than one reasonable interpretation, at least one of which is inaccurate.   Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

For more information about debt collection harassment, visit us at http://www.ConsumerRightsOrlando.com