Can A Creditor Contact Me After I File Bankruptcy?

Recently, clients have contacted me stating creditors listed in their bankruptcy have been contacting them via letters and phone calls. Clients are confused because they thought the purpose of filing bankruptcy was to eliminate the debt and to stop creditors from contacting them. Once a debtor files bankruptcy, creditors are put on notice that the debtor has filed bankruptcy. Practically speaking, creditors should then cease all communications with the debtor. This article will explain what happens if they continue contacting debtors.

What is the Law?

Under the FCCPA, a creditor is not allowed to contact a debtor and attempt to collect a debt if they have knowledge that the debtor is represented by an attorney. See Fla. Stat. 559.72(18). This can get tricky in the bankruptcy realm of things. For instance, post-bankruptcy, a creditor may not call the debtor and ask for payment, but if the debtor still has the creditor’s property, the creditor may ask the debtor for the property back. Thus, the purpose of the communication is extremely important.  In a recent case, a creditor was notified of the debtor’s bankruptcy and the attorney who was representing him for the bankruptcy, but still continued to attempt to collect the debt.  I was able to recover $1,000 for the debtor for this misconduct.

Another tricky situation arises if a debtor has a judgment pre-filing of a bankruptcy and is having their wages garnished. Once the bankruptcy is filed, the garnishment is frozen due to the court ordering an automatic stay, which was discussed in a previous blog. If a debtor does not own a home, they are allowed a “wild card exemption” in the amount of up to $4,000 to protect personal property.  See Osbourne v. Dumoulin (In re Dumoulin).  Whatever is not protected under the wild card exemption, and is not listed in the bankruptcy, is fair game for collection after discharge of the bankruptcy.  For instance, in a recent case, my client was having his wages garnished pre-filing of the bankruptcy.  However, he used up his whole wild card exemption, so he was unable to protect the rest of the garnished wages.  After his bankruptcy discharge, the creditor proceeded with the garnishment.  This was allowed because the garnished wages were not protected by the wild card exemption.

Moreover, the FCCPA prohibits creditors from attempting to collect a debt from a debtor if they know the debt is not legitimate. See Fla. Stat. 559.72(9). Once a debtor’s debt is discharged in bankruptcy, the debt is no longer legitimate. Thus, if the creditor attempts to collect the debt from a debtor after discharge, they are in violation of the statute.  In a recent case, one of my clients discharged a medical bill in their bankruptcy.  After the bankruptcy was complete, the creditor continued contacting my client attempting to collect the debt.  This was a violation of both Fla. Stat. 559.72(9) & (18) because the client did not owe the debt anymore, and the creditor should have known about his representation for the bankruptcy.

If a creditor violates the FCCPA, the statute provides up to $1,000 in statutory damages, any actual damages, attorney’s fees and costs. Further, if a creditor commits any of the violations described above, they are most likely in violation of the bankruptcy automatic stay, as well ( this will be discussed in a future blog).

What Should You Do?

If a creditor contacts you via mail or phone after you have filed bankruptcy, you should immediately contact Berkowitz & Myer.  If you did not use our firm for your bankruptcy, we can work with your bankruptcy attorney to resolve the matter. If you hired Berkowitz & Myer for your bankruptcy, then you are already in good hands.  If you are being harassed by creditors or are considering filing for bankruptcy, contact our firm for a free consultation.

Top Three Florida Debt Collection Violations

I have seen creditors violate Florida’s consumer protection statute (“FCCPA”) in almost every most possible manner.  That being said, in my experience, the following three violations occur most frequently:

  • Harassing phone calls – This is by far the most prevalent creditor violation that I come across.  The law is not exactly black and white on what constitutes harassment under the FCCPA.  There are many factors that come into play when determining if a creditor is legally harassing you.  I can say with confidence if you have told a creditor to stop calling at least three times, and they continue to call you, there is a good chance you have a harassment case against the creditor.  Essentially, you have to be able to show a pattern.  For example, if you have told a creditor to stop calling three times and explained you cannot afford to pay the subject debt, why else are they calling?  I make the argument that they are calling solely to harass you.  I have yet to lose this argument.
  • Calls to the workplace – This section of the statute is very tricky as well.  For instance, if you listed your employer’s telephone number on the creditor’s contract, creditors will argue that they had written permission to contact your employer in an attempt to collect the subject debt.  Further, if they contact you directly at work, this does not violate the statute either.  However, if they contact a third-party such as a colleague or your boss, they most likely have violated the statute even if they didn’t discuss the debt.
  • Knowingly attempting to collect a debt that is not owed – The key word here is “knowingly”.  Creditors have to have actual knowledge that the debt they are attempting to collect is not owed.  This seems to happen many times with cable and internet companies.  These companies will state you owe money for services rendered.  Shockingly, after informing them that you never had their services or you paid your bill, they will continue attempting to collect the subject debt.  This is a violation.
  • Remedies – Pursuant to the FCCPA, a consumer is entitled to up to $1,000 in statutory damages, any actual damages, attorney’s fees, and costs.  Simply put, you never will have to pay attorney’s fees or out-of-pocket expenses in these types of cases, and in many scenarios, you will be awarded up to $1,000 in statutory damages.

What To Do If You Fall Into One Of These Categories

If you are victim of one of these violations, you need to speak with a consumer protection attorney immediately. What separates me from many other consumer protection attorneys is, I personally speak with you and evaluate your case. At bigger firms, you will be lucky to ever speak with an attorney.  Most of the time, you will be communicating with a legal assistant. If you think you have a case, call me at 727-344-0123, or e-mail me at jon@berkmyer.com and tell me what has happened.

1 www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0559/Sections/0559.72.html

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

no-cost consultation: (727) 344-0123
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