PA State Law Protecting Consumers from Debt Collectors
By Amy Good-Ashman, Esq. | April 11, 2008
Pennsylvania has a law that somewhat mirrors the Fair Debt Collection Practices Act (FDCPA). It is called the Pennsylvania Fair Credit Extension Uniformity Act. In general, it provides consumers protection from debt collectors AND creditors. What follows is a brief summary of the law. A creditor and/or debt collector may not:
- Communicate with a third party about your debt unless they have your prior consent or the express permission of a court.
- Communicate with you at unusual times or places, or at work if they know your employer does not approve of the contact.
- Harass, oppress, or abuse you or any third party while collecting a debt.
- Make or use any false or misleading statements when collecting a debt.
- Use unfair or unconscionable means to collect a debt.
Source: PA Attorney General Tom Corbett’s Bureau of Consumer Protection Booklet
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PA Consumer Resource for Complaints About Abusive Debt Collectors
By Amy Good-Ashman, Esq. | April 7, 2008
The Pennsylvania State Attorney General’s Office, Bureau of Consumer Protection is another resource for consumers harassed by debt collectors. The AG’s office will not bring a private action for you, but they will take your complaint. Please click here to read about the AG’s complaint process.
The following are links and telephone numbers to assist you:
- Consumer Complaint form (online)
- Consumer Complaint form (printable)
- Do Not Call Complaint form
- The PA Attorney General’s Bureau of Consumer Protection Booklet (see pg 25-26)
- PA Bureau of Consumer Protection - 1-800-441-2555
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Debt Collection After Bankruptcy Filing
By Amy Good-Ashman, Esq. | April 4, 2008
After you file for bankruptcy, you receive protection from debt collection by the automatic stay. This is a Federal law that prohibits your creditors (and debt collectors) from attempting to collect debts during the pendency of your bankruptcy, with some exceptions. When you receive a discharge in bankruptcy, the automatic stay becomes permanent and any debt listed and discharged in your bankruptcy cannot be collected upon.
However, people who have filed for bankruptcy and/or received a discharge have been increasingly receiving collection calls and/or letters from debt collectors (not the original creditors listed on the bankruptcy.) Even though you are protected by the automatic stay/discharge order, the debt collector will claim that they did not have knowledge of the bankruptcy. They simply purchased the debt from the original creditor who did not tell them that a bankruptcy was filed.
If you are in this situation, you should contact an experienced consumer attorney for assistance. It is important to notify the debt collector (preferably in writing by certified mail, return receipt, with a copy of your “Notice of Bankruptcy Filing”) of your bankruptcy. After the debt collector has knowledge of the bankruptcy, they must stop collecting on the debt. If they do not, you may be able to take action against the debt collector under either 1) the Bankruptcy Code as a violation of the automatic stay/discharge order or 2) the Fair Debt Collection Practices Act.
You are not alone and YOU HAVE RIGHTS! Contact an attorney today!!!
Topics: FDCPA | No Comments »
They Aren’t “Technical Violations,” It’s Called STRICT LIABILITY
By Amy Good-Ashman, Esq. | March 24, 2008
Congress’ intent on creating strict liability lies within the FDCPA. Section 1692k(a) reads “any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person…” (Emphasis added.) Further, the sections of the FDCPA repeatedly refer to “may not use any” and “may not engage in any” which further supports Congress’ intent on making the FDCPA a strict liability statute.
(Copyright - Amy B. Good-Ashman 2008)
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Congress’ Intent When Writing the FDCPA: Protect Consumers First & Foremost
By Amy Good-Ashman, Esq. | March 20, 2008
There is a section in the FDCPA entitled “Congressional findings and declaration of purpose.” For those of you not familiar with reading laws, this section essentially sets out what Congress had in mind when writing the FDCPA. Arguably, this section can be used as a guide when encountering a question involving the remaining provisions of the FDCPA which may be unclear or when countering an argument by a debt collector.
The Congressional findings section of the FDCPA are very interesting and I will summarize them below:
1. Congress found that there “is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” and that these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to the invasions of individual privacy.” Section 1692(a).
2. It was also the opinion of Congress that the “existing laws and procedures for redressing these injuries are inadequate to protect consumers.” Section 1692(b).
3. Congress stated that there are ways for debt collectors to collect debts other than by abusing consumers. Section 1692(c).
4. It was also the opinion of Congress that, even if the abusive activity occurs entirely within one state, that abusive activity directly affects interstate commerce. Section 1692(d).
5. Congress stated the purpose of the FDCPA was to:
a. “eliminate abusive debt collection practices by debt collectors”
b. to ensure that debt collectors who are not abusive are not “completely disadvantaged”
c. “to promote consistent State action to protect consumers against debt collection abuses.” Section 1692(e).
After reading Congress’ findings and declaration of purpose, it becomes obvious that Congress intended first and foremost (almost to the extent of exclusively) to protect consumers from abusive debt collection by debt collectors. There is no mention of protecting abusive debt collectors. None, zero, zip, nada. The only intent Congress had in creating the FDCPA with regard to debt collectors was to “insure that those debt collectors who refrain from using abusive debt collection practices are not completely disadvantaged.” (Emphasis added.) Section 1692(c). Note that this isn’t even a strong protection for law-abiding debt collectors, just an expression that Congress thought it was okay to disadvantage debt collectors (probably given debt collector’s huge advantage over consumers) so long as compliant debt collectors are not “completely disadvantaged.”
The FDCPA is approximately thirty years old. Although the FDCPA has been refined and fleshed out by case law over the years, it is time for Congress to take action to ensure further and better protections (and updated damages) and remedies to protect consumers from abusive debt collection activities and to affirm that the Courts are following Congress’ intent in their application of the law.
(Copyright - Amy B. Good-Ashman 2008)
Topics: FDCPA, FDCPA Case Law | No Comments »
An Overview of How Consumer Debts are Collected & Goal of Debt Collectors
By Amy Good-Ashman, Esq. | March 17, 2008
Pre-Collection
* After a debt has not been paid, creditors generally hold a debt for 120 to 180 days.
* A creditor will attempt to maximize the debt without the use of a third party (i.e. debt collector).
* You may receive telephone calls from the creditor or letters from the creditor attempting to obtain a payment from you.
Charge-Off
The creditor “charges off the debt.”
The debt is still owed. It is charged off on the books of the creditor.
Debt Collectors
Primary Debt Collectors
* The debt gets assigned to them first.
* These debt collectors tend to be better collectors. Not better in the sense of treating consumers better, but better in that they are more successful in collecting on the debt.
Secondary Debt Collectors
* The debt gets assigned to them after the primary debt collector is not successful.
* These collectors tend to be more aggressive.
* Note that if a “cease contact letter” was sent to the primary debt collector, this debt collector will argue that it does not apply to them because they did not have knowledge of the letter when they received the debt account. You may have to send a second “cease contact letter.”
Tertiary Debt Collectors
* The debt gets assigned to them after the primary and secondary debt collectors are not successful.
* This tends to be in the debt buyer market. This can be a huge disadvantage for the consumer because they are ruthless collectors who tend to use no holds barred methods in collecting. You will have trouble with these collectors if you have filed bankruptcy anywhere in the foregoing process because they either 1) do not care that you filed bankruptcy on the underlying debt or 2) do not know that you filed bankruptcy on the underlying debt.
* Again, as with secondary collectors, it is probably best to send a new “cease contact letter” to ensure that the collector does not contact you and is aware of the status of the debt from your end (i.e. that you filed bankruptcy, that you are represented by an attorney, that you don’t owe the debt, etc.)
The primary goals of debt collectors are to:
1. Get a payment - partial or full.
2. Get an acknowledgment from you that you owe the debt.
3. Get a promise to pay the debt.
It is important that you contact an experienced consumer lawyer before you make a payment, acknowledge that you owe a debt, or promise to pay a debt. These actions can affect your remedies in the future.
(Copyright - Amy B. Good-Ashman 2008)
Topics: FDCPA, Uncategorized | No Comments »
The 3 “B’s” of Being a Good Client in FDCPA/Debt Collection Cases
By Amy Good-Ashman, Esq. | March 13, 2008
- Always tell your attorney if the debt collection involves a business debt.
- Always tell your attorney about other collection actions against you.
-
Tell the truth, the whole truth, and nothing but the truth to your attorney. By not doing so, you jeopardize your attorney’s ability to assist you.
Be Reliable
- Always provide your attorney with your current contact information.
- Keep appointments when scheduled.
- Provide your attorney promptly with any requested documents or information.
- Show your attorney you care about your case.
- Be involved, motivated, and participate in your case by:
1) Writing your own factual summary and mark it as “privileged” in advance. Supply it to your attorney.
2) Providing your attorney with ALL documents (including letters, envelopes, letters you sent, receipts, etc) and all tape recordings.
Be Presentable
- Remember you may have to give depositions and/or appear before a jury.
- You do not have to get a “make over” but you do have to be neat and tidy and appear to care about yourself and your case.
(Copyright - Amy B. Good-Ashman 2008)
Topics: FDCPA | 1 Comment »
The Student Loan Exception to Wage Garnishment in Pennsylvania
By Amy Good-Ashman, Esq. | March 10, 2008
“After an order of default has been entered by the board of directors or the court and the time for appeal has expired, the [Pennsylvania Higher Education Assistance] agency may execute upon the wages, salaries or commissions in the hands of an employer or any other person including the debtor when self-employed in order to effect the repayment of any sums due to the agency as determined by the provisions of this act. An employer shall include any person, partnership, association, corporation, institution, governmental body, unit or agency, school district or municipality, or any other entity employing one or more persons for a salary, wage, commission or other compensation. Execution shall comply with the following: Read the rest of this entry »
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I’ve Been Sued by a Debt Collector in Pennsylvania
By Amy Good-Ashman, Esq. | March 5, 2008
What happens in the beginning stages of a debt collection lawsuit?
- The debt collector or creditor files a Complaint with the Prothonotary. This is the document that initiates the lawsuit. The debt collector is the Plaintiff. The person being sued is the Defendant.
- The debt collector (Plaintiff) must serve the Complaint on the consumer (Defendant). This means that the debt collector (Plaintiff) must provide the consumer with formal and proper notice of the lawsuit that was filed. In Pennsylvania, this must be done by the county Sheriff.
- After the Sheriff serves the Complaint on the consumer (Defendant), the consumer (Defendant) has twenty (20) days to respond to the Complaint by filing an Answer (a specific and detailed response to the information in the Complaint) or by filing Preliminary Objections (based on legal grounds, challenges the sufficiency of the Complaint, whether the Complaint follows civil procedure rules, etc.) This is what a typcial “20 Day Notice” looks like and will appear somewhere in the beginning of the paperwork:
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
LAWYER’S REFERRAL SERVICE OF THE
X COUNTY BAR ASSOCIATION
123 Any Street
Any Town, PA 00000
- If the consumer (Defendant) does not respond to the Complaint within twenty (20) days, the debt collector (Plaintiff) must serve what is called a “Ten Day Notice” on the consumer (Defendant). This tells the consumer (Defendant) that they have ten days to respond to the Complaint (see number 3 above) or a judgment will be entered against them. In Pennsylvania, this document is sent by mail.
- If the consumer (Defendant) does not respond within ten days, the debt collector (Plaintiff) will start the judgment process. (See General Overview of the Debt Judgment and Execution Process) You do not want to allow the lawsuit to get to this point without seeking legal advice.
If you have been sued by a debt collector, it is important that you respond to the Complaint within the required time either on your own (this is referred to as “pro se” and is generally not recommended but is better than doing nothing) or through an experienced consumer attorney. You can also consult legal services or the lawyer referral service of your local bar association. Do not ignore a Complaint.
(Copyright - Amy B. Good-Ashman 2008)
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General Overview of the Debt Judgment & Execution Process
By Amy Good-Ashman, Esq. | March 4, 2008
Step One - Obtain a Judgment
The creditor must establish in court that the debt is owed. This is typically done by filing a lawsuit in the local county court. If the plaintiff (creditor) wins the lawsuit, a judgment is created. A judgment can also be created if the defendant (debtor) does not respond to or participate in the lawsuit.
Step Two - Execution
A judgment give the successful plaintiff (creditor) no interest and no priority in the debtor’s property or income. The judgment remains unsecured until execution on the judgment is obtained.
- Writ of Execution - orders the Sheriff to look for non-exempt property of the judgment debtor, seize it, sell it, and pay the proceeds to the judgment creditor until the judgment is fully paid.
- Levy & Seizure - the Sheriff takes the Writ of Execution and goes looking for the debtor’s property. The Sheriff may take physical possession of the property or “tag” it with a notice of seizure or post real property.
- Return of Writ - the document that describes the Sheriff’s efforts to find property of the debtor.
- Execution - describes the entire process from start to finish.
After execution, the judgment creditor becomes a “judicial lien creditor” or a “lien creditor.” This happens only after the Sheriff has levied upon a specific piece of the debtor’s property and the judgment creditor is a “judicial lien creditor” or a “lien creditor” as to those items only.
Step Three - Sale
The Sheriff advertises the levied and/or seized property, sells it, and pays the proceeds to the judgment creditor until he is paid in full with any balance remaining going back to the debtor.
(Copyright - Amy B. Good-Ashman 2008)
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