Consumer Bankruptcy Journal Fall 2015 - Page 34

USING FEDERAL CONSUMER STATUTES TO HELP YOUR BANKRUPTCY CLIENT By Rex C. Anderson Law Offices of Rex Anderson PC R ecently my phone has been ringing off the hook with consumers worried about debt collectors. The most common complaints involve attempts to collect inflated balances, collecting on debts already paid (by wage or tax garnishments), suing on time barred debts, collecting debts discharged in bankruptcy or never owed in the first place, i.e. debts of family members both living and deceased. In a day and age, where trillions of dollars of “charged off” debt are being bought, sold and collected upon, I guess it should not be surprising that there are a few unscrupulous players out there.  This past week, JP Morgan Chase agreed to pay $136M to federal and state regulators for its involvement in the lying, stealing and cheating that is rampant in the fastest growing sector of our nation’s economy since the 2008. It’s the debt buying industry. See the JP Morgan Chase story - http://www.chicagotribune.com/ business/breaking/ct-chasesettlement-0709-biz-20150708story.html. Although 34 people should be CONSUMER BANKRUPTCY JOURNAL responsible and pay their just and owing debts, it is nevertheless illegal for debt collectors to use abusive, harassing, deceptive and unfair collection practices. In 1977, Congress decided that the debt collection industry had run amok for long enough and that it needed to be regulated by a uniform federal law. After many months of testimony, investigation and hearings, Congress found: “There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy … Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debt s … Congress delegated to consumers and private consumer attorneys the task of enforcing the Fair Debt Collection Practice Act (FDCPA). This law requires debt collectors to treat you, me or anyone else who owes a debt with respect, dignity, truth and fairness. The FDCPA also protects innocent family members, Winter 2015 employers and other third parties strangers to the debt, from collection harassment. Significantly, one of the primary purposes of the FDCPA was to protect reputable  collection agencies from being competitively disadvantaged. The FDCPA requires a debt collector, found guilty of violations, to pay actual and/or statutory damages along with the consumer’s attorney fees. As such, it is possible in many FDCPA cases for the consumer to negotiate resolution of the underlying debt while at the same time using a “free” lawyer to accomplish this. The FDCPA is about regulating collectors and requiring debt collectors to comply with the law and whether the consumer is a “deadbeat” is irrelevant. The Telephone Consumer Protection Act (TCPA), is another federal consumer (gem of a) law designed to protect our privacy rights and allow consumers to choose how debt collectors may contact them. (No time to discuss telemarketers in this article). The law permits debt collectors to use computer generated collection calls (robo-dialers with pre-recorded/ artificial voice messages) to National Association of Consumer Bankruptcy Attorneys