Kentucky Fair Debt Collection Practices Act- Video Guide By Nick

Debtors who owe money to creditors, run into two types of problems after a bankruptcy is filed,  Debt collectors, and financial institutions sometimes fail to send reaffirmation agreements.   The second problem is rare; some creditors and debt collectors have no respect for the bankruptcy court.  Especially if they are in another country.  They may attempt to collect for a discharged or time-barred debt you do not legally owe. When this happens the bankruptcy court has contempt powers and can either allow damages for contempt or award damages under the Fair Debt Collections Practices Act.  You can sue in Federal court or in a Kentucky court for an FDCPA claim

Fair Debt Collection Practices Act (FDCPA)

There are two court orders, during the bankruptcy:

1. The stay is in effect during the case.
2. The discharge is a permanent court order and occurs at the case’s end.

These court orders protect you from creditors and debt collectors attempting to collect a debt. Interestingly, the Fair Debt Collections Practices Act further protects you from a debt collector whether you file bankruptcy or not. Debt collectors often record calls—they are recording it to use it against you in court—not for “quality control purposes.”

Suing for Contempt of The Bankruptcy Stay

According to the Bankruptcy statutes, violating the stay is more powerful, and the punishment is more severe for a violation than a violation of the discharge.  This means larger fines and awards against the debt collector, including attorney fees. The creditor or debt collector often denies he ever sent a letter or made a phone call if you don’t keep records.

It’s your job to gather the evidence against the debt collector. To this end, we ask clients to add the “record all calls” app on their phone, so they can make a record of every phone call, which they can’t deny from the debt collector’s side. We also have a worksheet to help maintain a paper record.

The FDCPA  statute states if a creditor to whom you owe money only asks for the name of your attorney, it probably isn’t a violation of the FDCPA statute. Merely sending a statement is not an effort to collect a debt.  After filing bankruptcy, creditors and debt collectors can not harass, or collect debts. They can also not take property without filing a motion to terminate the stay.

Suing for Contempt of The Discharge

Suppose a debt collector attempts to collect credit card debt after the bankruptcy court discharge. In that case, it is not only contempt according to the Bankruptcy statute, but it is also an FDCPA violation.  Suing the original creditor back can give you enough money back to pay for your bankruptcy. Here is my PowerPoint on nSuing Creditors for Bankruptcy Contempt and the FDCPA

The Fair Debt Collections Practices Act requires the following:

1. There must be a Debt Collector (the person you sue must be collecting for another person he cannot be just collecting his own debt).
2. The Debt collector must be attempting to collect consumer debt for the FDCPA to apply. A business debt is normally not an FDCPA violation.  Business debt has no or limited consumer protections.
3. A violation of any of the lower 29 sections of FDCPA law in debt collection including personal harm.  There is a catchall section for any act which is dishonest, unfair or disrespectful.

This is only a partial list of violations of the FDCPA statute for which you may potentially sue creditors and debt collectors who collect debts.

1. Contacting Third Parties 15 USC §1692 (b)

Federal Law on communication with the debtor where a debt collector oversteps after notice that an attorney represents the debtor.

• §1692b(1) Failing to identify themselves or failing to state they are confirming or correcting location.
• §1692b(2) Stating the debtor owes any debt to any 3^rd party.
• §1692b(3) Contacting any party more than once to collect debts, unless requested.
• §1692b(4) Using postcards or notes.
• §1692b(5) Any language or symbols on any envelope or communication indicating it is a debt collection business.
• §1692b(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.

2. Prohibited Communications 15 USC §1692 (c)

• 1692c(a)(1) Contact the Debtor using unusual times or places before 8 am after 9 pm.
• 1692c(a)(2) Contact after the debt collector knows an attorney represents the client.
• 1692c(a)(3) Contact at a place of employment when it knows it is prohibited.
• 1692c(b) Contact anyone except the consumer, credit bureau, or his attorney concerning the debt.
• 1692c(c) After written notice, the consumer refuses to pay the debt or wants communication to cease.

3. Harassing Communications 15 USC §1692 (d)

• 1692d Any conduct against the debtor where the natural consequence is to harass, oppress or abuse any person.
• 1692d(1) Communication used by debt collectors to threaten violence or other criminal means to harm.
• 1692d(2) Profane or abusive language.
• 1692d(3) Publication of a consumer who refuses to pay a debt.
• 1692d(4) Advertise a debt for sale.
• 1692d(5) Repeated telephone communications.
• 1692d(6) Debt collector place phone calls without disclosing his identity.

4. False or Misleading Communications 15 USC §1692 (e)

• 1692e False, deceptive, misleading representation connected with debt collection by the debt collector.
• 1692e(1) Representation of any affiliation with the US or a state, including any badge, uniform, or facsimile.
• 1692e(2) Character amount or the debt’s legal status.
• 1692e(3) Any individual is an attorney, or the communication is from an attorney.
• 1692e(4) Nonpayment will result in an arrest or garnishment.
• 1692e(5) Threaten to take any action that cannot be legally taken or is not intended.
• 1692e(6) Sale or transfer of the debt would cause a consumer to lose a defense or claim.

5. Unfair practices fees and payments 15 USC §1692 (f)

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section

• 1692f (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
• 1692f (2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
• 1692f (3)The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
• 1692f (4)Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

5. Unfair practices improper communications 15 USC §1692 (f)

• 1692f(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
• 1692f (6)Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
       (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

       (B) there is no present intention to take possession of the property; or

       (C) the property is exempt by law from such dispossession or disablement.
• 1692f(7) Communicating with a consumer regarding a debt by postcard.
• 1692f(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

6. 30-day violation notices 15 USC §1692 g

• (a)Notice of debt; contents  Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
•      (1) the amount of the debt;
•      (2) the name of the creditor to whom the debt is owed;
•      (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
•      (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
•       (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
  (b)Disputed debts  If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.
  (c)Admission of liability
  The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
  (d)Legal pleadings A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).
  (e)Notice provisions  The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section

What To Do if A Debt Collector is victimizing you?

If a debt collector is victimizing you, follow guidelines for taking calls from a debt collector.

• Limit the conversation and only gather information from them.
• First, ask the name of the person calling and their address.
• Next, ask for the name of the creditor and their address. It gives you information to look at your records to see if you owe such an account or are behind on it.
• Do not answer questions. They record the call primarily as an admission to be used against you in court. They also use it to train employees to make more effective calls.
• Remember, they don’t use recordings for “quality control purposes” and it is not their job to help you or give you advise on how to sue the lender.
• If you are at work or in a public place, explain that it’s embarrassing to talk to them at the number they’re calling. Then, kindly ask them to place that number on their do-not-call list.
• If you are a Kentucky resident and have an attorney, tell them to call the attorney and give the collector your attorney’s contact information.
• Also, ask them to only communicate with you in writing and ask for their address for you to send them a certified letter requesting that you only be contacted via mail.
• Record all creditor calls, if you can.
• Tell them you dispute the debt and will get back to them with your lawyer’s information.

State By State Permissions for Recording Phone Calls

First, download an app to “record all calls on your cell phone.” Then, keep a log of the debt collector’s calls. Also, take a picture of the Caller ID, if you can, and keep records.

Interestingly, most states allow you to record the call. In Kentucky and Indiana, you do not have to advise the caller that you are recording the call to use it as evidence in court.

Below, you will find a list of the consent practices for each state against debt. Vermont is the exception because there are no existing consent laws either way. Rather, they fall under federal law that requires one-party consent.

The Unlawful Debt Collection Practices Act (UDCPA) provides a minimum of 1,000 dollars in actual damages for an unfair debt collection practice violation by debt collectors and attorney fees. Such calls often violate other laws, such as the bankruptcy stay. However, you must provide evidence of the call, such as telephone records or a recording.

Here is my PowerPoint teaching how to sue creditors for contempt for Kentucky residents: Bankruptcy Contempt and the FDCPA suing Creditors for Contempt in Bankruptcy Court

Kentucky law and other states on whether you can record conversations

Most states only require one party consent to record a conversation

Are You Becoming A Victim By Debt Collectors?

Debt collectors, creditors, and debt collection agencies may violate the rules. If you are a Kentucky resident and you are going through a similar situation, contact us for information and a free consultation on how to deal with debt collectors. Nick C. Thompson will help you act against debt collectors and stop improper debt collection practices using the federal law. Contact us to book a meeting and let’s discuss your problem further.

Resources for Bankruptcy

Louisville, Kentucky Bankruptcy Forms

Other Related Information

About the Fair Debt Collection Practices Act

Fraud, Stay, and Discharge Adversary Complaints

How to Handle a Debt Collector FDCPA

Contempt of Court for Default Judgements

How to Keep Your Property When Filing Bankruptcy in Kentucky

If you are a Kentucky resident facing a violation by debt collection agencies, don’t delay because timing is crucial. The statute of limitation for FDCPA violations is one year.  The best way to file for a violation of the fair debt collection practices act is to see an attorney long before the act expires.  I am here to help you to take the best actions possible. So, contact my office to start the conversation—Nick C. Thompson, Bankruptcy Lawyer: 502-625-0905.