When Are Debt Collection Calls Considered Harassment?

These days, nearly everyone has some form of debt, whether it is credit card debt, a mortgage payment, or a car loan. Sometimes, unforeseen circumstances arise in life which prevents many from paying their bills on time. For example, maybe you were laid off from your job? Or, maybe you were injured and cannot work? Regardless of your situation, not paying your debts on time will inevitably lead to collection calls. As many of you know, some of these collectors can be more aggressive and call more frequently than others. Thus, the question becomes: when are do these collection calls rise to the level of illegal harassment?

Harassment under The Florida Consumer Collection Practices Act (“FCCPA”) and the Fair Debt Collection Practices Act (“FDCPA”)

The FDCPA (federal statute) and the FCCPA (state statute) are the two statutes which protect consumers from harassing collection calls in the state of Florida. Under 15 U.S.C. §1692d(5) of the FDCPA, a debt collector is prohibited from causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. Under Florida Statute 559.72(7) of the FCCPA, creditors and debt collectors shall not “willfully communicate with the debtor…with such frequency as can reasonably be expected to harass the debtor…” Legally, collectors have the right to contact you and attempt to collect a debt that is owed. To that effect, there is an abundance of case law across the country which states even receiving multiple calls a day, in and of itself, does not violate either statute cited above. There has to be action on behalf of the debtor in order for collection calls to be considered “harassing”. The easiest way for a debtor to convert legal collection calls into illegal collection calls is to verbally tell collectors to stop calling- yes, it is that easy. As almost everything else in the law, there is no black-and-white rule as to how many times a debtor has to request a collector to stop calling before it is considered harassment. Again, collectors have the right to call and attempt to collect an owed debt. From my experience, I can tell you it needs to be at least three (3) times in order to have a viable claim. Debtors need to be able to show a potential judge or jury that they repeatedly told a collector to stop calling, and the collector refused to do so. In a previous blog, I explained why it is very important to document each call from a collector- you want to have concrete facts, rather than generalizations as to when this conduct occurred.

What To Do If You Are Receiving Collection Calls

If you are receiving collection calls, you need to speak with a consumer protection attorney. Almost all attorneys will provide a no-cost consultation to evaluate your case. Undoubtedly, you will be advised to start logging calls in an effort to build a case against a harassing collector. I deal with these types of cases on a daily basis. If you are receiving collection calls, call me or simply email me at jon@berkmyer.com and tell me what has happened.

The Statute of Limitations for Debt Collection in Florida

If a creditor accuses you of not paying a debt, they can file a lawsuit against you in civil court to obtain a judgment against you. A judgment can have serious effects, as it can lead to wage garnishment and can significantly lower your credit score. For these reasons, you want to defend against a creditor judgment whenever possible and an experienced attorney can help you identify any possible defenses in your case.

One common defense is that the creditor filed the lawsuit after the statute of limitations had expired. A statute of limitations is a deadline for filing a particular legal claim and Florida law sets out different time limits for different types of legal actions. The Florida statutes of limitations that may apply to a creditor claim are as follows:

  • Debt based on a written contract – 5 years
  • Debt based on a verbal agreement – 4 years

The existence of these statutes of limitations does not stop many creditors and collection companies from continuing to file lawsuits against you after the deadline has passed. Most creditors hope that the debtor will not respond to the lawsuit, which will result in a default judgment.

Your Rights if the Statute of Limitations has Expired

In any creditor claim against you, you should always examine whether the statute of limitations has run. If it has, you can request that the claim be dismissed and, if the court agrees, the creditor loses the right to collect on that particular debt because they waited too long.

In addition, trying to collect a debt after the statute of limitations is considered to be abusive behavior under the Fair Debt Collection Practices Act. This means that beyond having the case dismissed, you can actually file your own claim against the creditor to hold them liable for abusive practices.

Call a St. Petersburg Creditor Harassment Lawyer as Soon as Possible

At Berkowitz & Myer, we stand up for consumers in Florida and will assert your rights in every case of creditor harassment. Please call our creditor harassment attorneys today at 727-344-0123.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html

https://www.law.cornell.edu/wex/default_judgment

https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text

Stopping Creditor Harassment

The last thing anyone in debt wants to hear is the sound of creditors calling. The phone seems to ring at all hours of the day and relief never seems to come. Victims of creditor harassment often allow the calls to continue because they are unaware of legal alternatives that would protect them from further harassment.

Because creditor calls will simply not stop on their own, victims need to realize they taking action is the only thing that will help. The following are alternatives that victims of creditor harassment can use in order to “fight back” against the seemingly never-ending calls.

Knowing Your Rights

It is not uncommon for debtors to believe that creditors have all of the leverage in matters of collection. While creditors do have leverage whenever it comes to collecting money, creditors do not have free reign when it comes to their collection efforts.

Under both Florida and Federal law, creditors must abide by specific rules. Violation of these rules provide debtors with legal rights to bring forth legal action against harassing creditors. Some restrictions creditors face under the Florida Consumer Collection Protection Act (FCCPA) include:

  • Misrepresenting themselves as police or a government agent
  • Contacting you between the hours of 9 p.m. and 8 a.m. without your permission
  • Holding themselves out as attorneys or misrepresenting to you that an attorney is involved
  • Communicating with you directly when they know you have retained legal counsel.
  • Creditors that violate any of the restrictions set forth in the FCCPA are subject to payment of damages and attorney’s fees. Victims should remember that they may also bring forth a cause of action under federal law.

Is the Debt Real?

Creditors can best take advantage of those least suspecting individuals. Sometimes, calls about debt may in fact just be phishing scams attempting to collect free money. Victims of harassment may assume that the debt is real and they do in fact owe the money sought. It is imperative that individuals verify, by requesting documentation, that they do in fact owe the debt and that the company on behalf of whom the creditor is calling does own the debt. If the creditor is unable to provide proof of the original debt, the victim should assume that this is a potential fraud issue and should request that the creditor no longer call.

Work out a deal

Many debtors receive harassing phone calls because they are incapable of paying the debt owed. Reaching a deal may be the best option for both parties. Creditors are aware they will often be unable to collect all of a debtor’s outstanding debt; in many cases, they may not collect anything at all. However, reaching a deal provides the creditor with the opportunity to collect a reasonable portion of the debt and allows the debtor to settle for a manageable amount less than what he or she owes.

Call a St. Petersburg Creditor Attorney Today for a Free Consultation

If you are in debt, you do not need to be a victim of creditor harassment. The alternatives discussed above provide debtors with opportunities to reconcile debts while avoiding harassment. The skilled and knowledgeable team at Berkowitz & Myer will help protect you against harassing creditors and help you recover damages whenever permissible under Florida and federal law. Call 727-344-0123 and schedule your consultation today.

1 https://www.ftc.gov/system/files/documents/plain-language/fair-debt-collection-practices-act.pdf
2 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0559/Sections/0559.72.html

Are You Receiving Student Loan Collection Calls?

Student debt financial concept as a graduation mortar board on the word for school tuition loan repayment or lending and education financing symbol for university and college students on a white background.

Nowadays, many people are dealing with the nightmare of paying back their student loans.  Sometimes, consumers are unable to make payment on this debt for different reasons.  Maybe you lost your job or were injured and out of work for an extended period of time.  Whatever the reason for nonpayment, collection companies are not allowed to barrage you with collection calls.  In previous blogs, I discussed the three statutes that protect you from harassing collection calls- the FDCPA, FCCPA, and TCPA.  Unfortunately, a recent change in the law has made it legal for collection companies to autodial your cell phone if they are calling in an attempt to collect a federal student loan.  The Bipartisan Budget Act of 2015 (“Act”)  was signed into law by President Obama and made effective as of November 2, 2015.  In short, the Act amended the TCPA and created an exemption for calls made to cell and residential telephone numbers pursuant to the collection of debts owed to, or guaranteed by, the United States.  Simply put, debt collectors who are collecting on federal student loans now can autodial your cell phone with no fear of being sued under the TCPA.

Remedy

The silver lining to this exemption is that you can still sue debt collectors for harassing collection calls under the FDCPA & FCCPA. All you need to do is tell them to “stop calling” and briefly inform them why you cannot pay the debt. Again, maybe you lost your job or you were injured and accrued an insurmountable amount of medical debt.  If you do this a few times, they no longer have the right to call and attempt to collect the subject debt.  If they continue to call, they are simply harassing you because they know why you cannot pay the debt.  You may not be entitled to $500 to $1,500 per call under the TCPA, but you can still recover up to $1,000 for these harassing collection calls under the FDCPA & FCCPA.  Further, you are entitled to have your attorney’s fees paid for by the abusive debt collectors.  That’s right, the calls will stop, you won’t have to pay attorney’s fees, and you can pocket some money for these harassing collection calls.

Contact A Consumer Protection Attorney

The moment you receive your first call after you have told these debt collectors to stop calling you is the moment you have a possible case in a court of law.  What you will need to do is contact a consumer protection law firm that regularly handles these types of cases.  Since the beginning of my legal career I have devoted my practice area to consumer law and handling collection call cases throughout Florida and in particular, St. Petersburg.  Dealing with collection call harassment day in and day out, it is easy to see how these calls can cause unnecessary levels of stress.  I will speak to any potential client the moment they have received that first call from a debt collector or creditor and told them to “stop calling”.  If you wonder if you might have a potential case, call me or simply email me at jon@berkmyer.com and tell me what has happened.   Let me turn the tables on these collection companies.

 

 

 

Robo Calls- The Difference Between A $500 Per Call & A $1,500 Per Call Violation

Frustrated Female Customer On Mobile Phone At Auto Repair Shop

In a previous blog, I discussed what the TCPA is and how consumers can stop these annoying autodialer/robo calls.  I briefly touched on what a consumer is entitled to if creditors and debt collectors autodial/robo call your cell phone.  In this blog, I want to expand upon how the damages in these cases are determined.

$500 Per Call vs. $1,500 Per Call

A consumer is entitled to $500 in damages per call if a creditor or debt collector negligently autodials their cell phone.  See 47 U.S.C. § 227(b)(3)(B).  A consumer is entitled to up to $1,500 in damages per call if a creditor or debt collector willfully or knowingly violates the TCPA by autodialing their cell phone.  See 47 U.S.C. § 227(b)(3)(C).  The real question becomes: what is the difference between a negligent and a willful autodial call to a consumer’s cell phone?  The best way to answer this question is by presenting two different scenarios.

Scenario #1: you apply for a car loan and do not provide your cell phone number as a contact number; rather, you provide your home phone number.  A few months pass and for whatever reason, you miss a payment on your car loan.  Next thing you know, you start receiving automated calls to your cell phone.  The first question you might ask is, “how did they get my cell phone number”?  That is a topic for another blog, but it is much easier than you might expect.  The better question to ask is, “are they allowed to autodial my cell phone even though I never listed it on the car loan application”?  The answer is emphatically “no”.  The car loan company never had your consent to autodial your cell phone.  This is a classic example of a negligent violation of the TCPA which would entitle you to $500 per call.

Scenario #2: you apply for a car loan and this time, you list your cell phone number as a contact number.  Again, you fall behind on payments and the collection calls begin.  This time, you tell the car loan company the reason you fell behind on payments and to stop calling your cell phone because you will make a payment on a certain date.  Inevitably, these calls will continue- it is most companies’ policy to continue to call until they have received payment.  So, you continue to tell the car loan company to stop calling your cell phone.  This is a classic example of a willful violation of the TCPA which could entitle you up to $1,500 per call.

Obviously, the difference between recovering $500 and $1,500 per call is huge.  Many consumer attorneys will settle out these TCPA cases for less than $500 per call because either they do not want to push the case through litigation, or they simply have too high of a case load to really care how much they recover for each call.  That is not how we operate at Berkowitz & Myer.  If you have told a creditor or debt collector to stop calling your cell phone and they continue to autodial your cell phone, I will litigate your case until they agree to pay $1,500 per call.

If you are receiving autodialer or robo calls, I will speak to you the moment you have received that first call from a debt collector or creditor and told them to “Stop Calling”.  This is when I start my case evaluations with most clients.  If you believe you may have a case, call me or simply email me at jon@berkmyer.com and tell me what has happened.

no-cost consultation: (727) 344-0123
© COPYRIGHT 2018 BERKOWITZ & MYER · ALL RIGHTS RESERVED