The Automatic Stay in bankruptcy will stop collection calls
Filing bankruptcy provides immediate protection from collection efforts by creditors. This is accomplished by a protective injunction that goes into effect as soon as the bankruptcy petition is filed. This immediate protective injunction is known as the “automatic stay.” The purpose of the automatic stay is to give “the debtor a breathing spell from his creditors.” It is intended to stop all collection efforts, harassment and foreclosure actions. As with almost any rule, there are exceptions. In some limited circumstances, such as collection of alimony and child support, the stay does not stop collection actions. Otherwise, the powerful protection of the stay takes effect automatically and immediately upon the filing of a bankruptcy petition. Once a creditor is notified of the bankruptcy, they are prohibited from calling you on the phone or taking any other collection effort, including, repossession attempts, lawsuits and garnishment. If a creditor does violate the automatic stay when they know it is in effect, you can bring a claim against them. You may be entitled to an award of damages from that creditor and they will have to pay your attorney fees for bringing the violation before the court.
The FDCPA can also stop harassing calls from debt collectors
The power of the automatic stay to stop creditor harassment is undeniable, but there are other ways to stop creditor calls without filing for bankruptcy. By sending a written request to debt collectors, you can stop them from calling you. This protection is provided by a federal statute known as the Fair Debt Collection Practices Act (FDCPA). Once a debt collector receives your written request they must stop calling.
Keep in mind that a debt collector under the FDCPA is not the same as your creditor. Your creditor is the party or person who loaned you the money in the first place. A debt collector is a third party that has been hired to try to collect the debt. In most instances the FDCPA applies only to collection efforts made by a debt collector and not the original creditor. So what restrictions are placed on calls and other communications by debt collectors?
Can a collection agency call you at work?
Unless they have your permission, the collection agency cannot contact third parties other than your attorney, a credit reporting agency or the original creditor, for any reason other than to locate you. Third parties may include your employer, your neighbors, family members and others. When contacting these parties, a debt collector can only ask where you live, what your phone number is and where you work. When a debt collector does make a call to try to locate you, they must state their name and that they are confirming or collecting location information about you. When making such a call, the debt collector cannot identify their employer unless asked and cannot state that you owe a debt. Once a debt collector has contacted a third party about you, they cannot contact them again unless they believe that the earlier response of the third party was incomplete or wrong and that the third party has the correct information. If a debt collector communicates in writing, they cannot communicate by post card and can’t use any language or symbols on the envelope or the contents that indicate that they are in the debt collection business or that the communication relates to the collection of a debt.
Communications by debt collectors with a consumer represented by an attorney
The FDCPA also requires debt collectors to stop calling you if they know you have an attorney. When we are retained by you we promptly identify your creditors and send out letters to let them know you are represented.
Restrictions on direct communications by debt collectors
Debt collectors may not call you at an unusual time or place or at a time they know is inconvenient to you. They may not contact you before 8:00 a.m. or after 9:00 p.m. The debt collector may not call you at work if they know or have reason to know that your employer does not allow collection calls at the workplace.
Harassment or abuse by debt collectors
Debt collectors cannot engage in harassing or abusive behavior including threats of violence or other criminal means against you or someone else. They are prohibited from making threats of harming your reputation, your property or your person. They cannot use obscene or profane language in communications about your debt. Aside from contacting the credit reporting agencies, debt collectors are prohibited from publishing a list of consumers who have allegedly refused to pay debts. They cannot repeatedly call just to annoy and harass.
False or misleading representations by debt collectors
A debt collector cannot use a false, deceptive or misleading representation in connection with their debt collection efforts. They cannot send you documents that resemble legal filings and cannot threaten legal actions that cannot legally be taken or that they do not actually intend to take. Debt collectors can’t claim to be from a law enforcement agency.
Collection agencies are prohibited from engaging in unfair practices
Collection agencies cannot engage in unfair practices such as adding interest, fees or charges to a debt that were not authorized in the original loan agreement or by state law. They cannot solicit post dated checks for the purpose of then threatening you with criminal prosecution. Debt collectors cannot threaten to seize property that they do not have the right to seize, or threaten to seize property if there is no intention to do so.
Sending a letter can stop calls from debt collectors
You can stop communications with these debt collectors by telling them in writing that you want them to stop. If you decide to go this route be sure to state your name, your address, and the phone numbers you don’t want them to call. You should then request that all future communications be made in writing. To make sure you have proof that the debt collector got the letter be sure to send it Certified Mail Return Receipt Requested. Keep a copy of the letter you send and attach the green certified mail receipt to it when you get the receipt back in the mail. If the phone calls continue answer them to find out who is calling. Be sure to keep a written log of any calls received after you sent your written request to stop the calls. Calls made in violation of the FDCPA give rise to a right of action against the caller. In such an action they may be required to pay you an award for damages and pay your attorney fees. Keeping good records can help you to prosecute such a claim.
Of course stopping these annoying calls does not mean that you are out of debt. It simply means that you have stopped the harassment and started get some control of your situation. If you want to consult with us to investigate options for dealing with your particular situation please contact us to schedule an initial free and confidential consultation. We can be reached at 601-853-9966.