Category Archives: Debt Collectors

Debt Collectors Calling Cell Phones

Debt Collectors Calling Cell PhonesDebt Collectors Calling Cell Phones

“Are your debt collectors calling cell phone numbers?” “Can debt collectors call my cell phone?” The short answer is “sometimes”.

There is a Federal law that restricts using automated dialing machines to collect a debt.

How do you know if a debt collector is using an automated dialing machine to call your cell phone? Usually, if there is a couple of seconds of silence on the line after you pick up the call or the caller leaves a per-recorded message, it may indicate the caller is using a auto-dialer.

Additionally, if you gave the original creditor permission to call your cell phone, then your permission also protects the collection agency or debt buyer from liability for the call. However, if you receive the calls for a debt you never owed, you could not have given the debt collector your “express permission” right?

According to the Federal Communications Commission recent decision,
collection agencies may call consumers who provided their cell phone numbers to the original creditor.

If you did not give your cell phone number to the original creditor or the debt collector, the debt collector violates the Telephone Consumer Protection Act (“TCPA”) every time it calls you on your cell phone by using an auto-dialer.

Debt Collectors Calling Cell Phones:  Debt collectors who violate the TCPA are liable for $ 500 per violation and, if the violation is willful, up to $ 1,500 per call.

If you provided your cell phone number to the debt collector (but not the original creditor) and do not wish to continue to receive collection calls on your cell phone you can send the debt collector a letter via certified mail / return receipt requested stating something like this:

“I hereby revoke my permission, if I mistakenly provided it, for you or anyone else to call me on my cell phone about this account. My cell phone number is [NUMBER XXX-XXX-XXXX]. Do not call me on this number again.”

Since TCPA violations occur when the caller causes a phone to ring, it is important to log all of the calls including the hang-ups.

Additionally, the messages that you receive on your cell phones often violate the Fair Debt Collection Practices Act (“FDCPA”). You should save all of the messages that you receive. The damages allowed by the FDCPA are in addition to any damages available under the TCPA.

Debt Collectors Calling Cell Phones – If you are receiving calls from collection agencies on your cell phone, you should contact an experienced phone harassment lawyer who is licensed to practice law in your state.

For more information – contact Cynthia Remboldt, FREE consultations can be scheduled by calling 404-348-4081.

An Equitable Argument by an Unperfected Secured Creditor

An Equitable Argument by an Unperfected Secured CreditorAn Equitable Argument by an Unperfected Secured Creditor.  Has the court ever heard an equitable argument made by an unperfected secured creditor? The answer is yes. Here’s the story.

In a case of very unfortunate timing, a creditor loaned a business $500,000.00 to keep its doors open, took a security interest in the Debtor’s assets to secure the loan, and filed a UCC financing statement five days later to perfect the lien. However, on the day after the loan, and four days prior to perfection of the lien, an involuntary petition was filed against the Debtor. In re Millivision, 474 F.3d 4 (lst Cir. 2007). In this case the creditor argued that the “strong-arm” pro visions of §544 “offended the underlying equitable principles of the Bankruptcy Code by conferring a “windfall” cash infusion…” Further, it was argued that the “relation-back” provision of §5 47(e) (which allows transferees a grace period to perfect a transfer) constitutes “any generally applicable law” under §546(b), which limits the rights of a Trustee to recover under §544. Affirming the lower Courts, the First Circuit rejected the § 547(e) argument, finding that a subsection applicable to prefer entail transfers is not “generally applicable law” for purposes of the strong-arm powers under § 544 (b). The Court then noted that the creditor could have perfected its lien prior to making the loan, and “under long-established principles. Therefore the court found that petitioner’s lack of diligence precludes equity’s operation”. So yes a court has heard an equitable argument by an unperfected secured creditor and lost the argument. If you have a question about your perfected interest, please see a bankruptcy attorney.

For more information about Bankruptcy and Disability Income  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Automatic Stay Violations

Automatic Stay ViolationsAutomatic Stay Violations – When you file for bankruptcy, the automatic stay goes into effect. The stay prohibits creditors and most kinds of debts you owe them from continuing to attempt to collect the debts, unless the law or the bankruptcy court says they can.  It’s “automatic” because you don’t have to ask the court for the stay, and the court doesn’t have to take any special action to make it effective; once you file a bankruptcy, the stay is in place automatically.

Sometimes, the creditor can file an action in court to have the stay lifted (this is called a Motion to Lift Stay). However, there are times when the automatic stay does not apply and the creditor can simply begin collection proceedings without seeking advance permission from the court.  If you have questions about if a debt will be subject to the bankruptcy automatic stay, you really need to contact a knowledgeable bankruptcy attorney.

Thankfully, the most common types of creditor collection actions are still stopped by the stay – harassing calls by debt collectors, threatening letters by attorneys and lawsuits to collect payment for credit card and health care bills. Following are some of the debts which collection “may” be stopped by the automatic stay.

1. Credit Card Debts, Medical Debts, and Attorney Fees
2. Debts Associated with Criminal Proceedings
3. IRS Liens and Levies
4. Foreclosures
5. Utilities

Automatic Stay Violations – if you believe a creditor has violated the automatic stay or you have questions about the automatic stay violations or the times the automatic stay would not apply – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Are Pre-petition checks delivered post-petition avoidable?

Are Pre-petition checks delivered post-petition avoidable?Are pre-petition checks delivered post-petition avoidable?   Here’s the story:  One day before filing for bankruptcy, a Debtor obtained a cashier’s check payable to his former personal injury attorney.  The check was sent express mail to the law firm’s post office box. The Trustee learned of the transaction, and established that the cashier’s check was not negotiated until five days after the debtor’s petition was filed. When the Trustee sought to avoid the payment under § 549,
the defendant (the personal injury attorney) argued that delivery of the check was before the petition was filed.  In re Scheu, 356 B.R. 751 (Bkrtcy. D. Idaho 2006 ).

Judge Pappas cited In re Mora, 199 F.3d i024 (9th Cir. 1999). which held that “the transfer of a cashier’s check for purposes of § 547(b) occurred at the time it was delivered rather than honored.” Applying Mora to § 549, the issue to be determined in this case was whether the transferee received the cashier’s check before the petition was filed. Based on the Trustee’s showing that the check was negotiated post-petition, the Court found the burden was on the transferee to prove it was delivered pre-petition. Refusing to take judicial notice that “express mail” is delivered on the day following mailing; the Court held for the Trustee, due to the defendant’s inability to prove when the check was actually received. Therefore, the check mailed before the debtor’s petition was presumed to be delivered post-petition and was avoidable under § 549.

Are Pre-petition checks delivered post-petition avoidable? For more information about Bankruptcy and the questions – are pre-petition checks delivered post petition avoidable – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Bankruptcy and Cars

Bankruptcy and CarsBankruptcy and Cars

Bankruptcy and Cars.  What options do I have to keep my Car is I file Bankruptcy and I have a loan on my car? When you file a bankruptcy, you will have the option to declare your the intention to “retain collateral and continue to make regular payments” on a car loan.  You should not that the Court finds that: 1) the automatic stay expires 30 days after filing, 2)the collateral was no longer property of the bankruptcy estate, and 3) repossession of the vehicle did not violate the say after 30 days. For more information you can review the case:  In re McFall, 356 B.R. 674 (Bkrtcy. N.D.) Ohio 2006).

Under S 521(a)(2) a debtor who has financed their car, and filed bankruptcy, has 30 days to declare their intention to reaffirm, redeem, or surrender their car (or other personal property); and another 30 days after the 341 hearing to perform that intention. If the debtor does not reaffirm, redeem, or surrender their car (or other personal property) timely, then X362 (h) provides that the stay is lifted as to the property and the creditor is able to recover the car (or other collateral), since it ceases to be part of the property of the bankruptcy estate. Thus, in such cases, not only can the creditor take the collateral, but the Trustee in a Chapter 7 case also loses the bankruptcy estate’s interest in it as well and is not able to take possession of the property.

For more information about Bankruptcy and cars and your concerns regarding your car – especially if it is financed  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Pre Bankruptcy Petition Check Negotiated Post-Petition

Pre Bankruptcy Petition Check Negotiated Post-PetitionPre Bankruptcy Petition Check Negotiated Post-Petition – What happens when a pre bankruptcy petition check negotiated post-petition? Here’s an example from the bankruptcy court.

Pre Bankruptcy Petition check negotiated post petition.  A Chapter 13 Debtor wrote a pre-petition check that was cashed after the debtor filed bankruptcy.  The Debtor demanded return of the funds from the creditor (the person who had not cashed the check), but the creditor refused. The Debtor then filed a motion to have the creditor held in contempt for violating the stay by refusing to turn over the funds received from the check post petition. The creditor argued that the funds were obtained through presentment of the pre-petition check negotiated post-petition, which was exempt from the bankruptcy automatic stay under s362(b)(11). In re Meadows, 379 B.R. 737 (Bkrtcy. S.D. Ohio 2008).

Judge Humphry agreed that the post-petition presentment of the check (cashing the check) was not a stay violation under s362 (b)(11). However the funds were property of the estate because the check had not been honored when the petition was filed. Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1586 (1992). Thus, even through presentment was excepted from stay violaiton, the crediotr was holding estate property which it refused to turn over upon the Debtor’s deman. The refusal to turn over the funds, did consitutue a stay violation. While obtaining the funds through check presentation was not prohibited, retaining those funds was not allowed. Finally, the Court found tha the creditor’s actions were based on a misunderstanding of s362(b)(11), not an intentional violation of law and did not assess unitive damages.

For more information about Bankruptcy and pre bankruptcy petition check is negotiated post petition  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.