There is a new check fraud scam in Southwest Florida. In the past few weeks, I have received numerous emails and phone calls from clients and potential clients regarding phone calls and messages they and members of their families have received on a check fraud investigation resulting from a payday advance. The callers allege that they are “investigators” and are investigating the debtors for check fraud for a loan from a payday advance that was not paid. The callers state the debtors need to return the call to prevent criminal charges. Some callers even go as far to say that a warrant has been issued and give fake case numbers for the court where the debtors live. As you can imagine, many people become extremely frightened and upset when they hear this.
The first thing you need to know is the allegations made are completely FALSE! There are no criminal charges for the inability to pay a debt. Not paying a payday advance is not check fraud. A fraudulent check can occur in situations where you issue a check on an account knowing it has insufficient funds to cover the check or forging a signature on another person’s account. When a payday advance is taken, the advancing company is loaning you money until your next payday and is getting interest (usually very high) back on the return. It is a loan, plain and simple, not a fraudulent check.
The phone calls are coming from collection agents attempting to scare people in paying back the debt. How can this misrepresentation be legal you ask – the answer is, it is NOT! Consumers have numerous protections under the law against this type of abusive and misleading debt collection. The protections arise under both federal and most state laws.
The conduct described can subject the collectors to liability for any actual damages sustained such as emotional distress, statutory damages, and punitive damages. Under the federal Fair Debt Collection Practices Act, statutory damages can reach $1,000 in addition to any actual and punitive damages. Florida law also allows for $1,000 in statutory damages and recovery of actual and punitive damages for violations of the Florida Consumer Collection Practices Act. Both of these Acts allow a debtor successful in litigation to recover attorney’s fees and costs from the abusive debt collectors. The abusive collections can also subject them to civil penalties through actions brought by state attorney generals and the Federal Trade Commission.
So if the conduct is illegal and subjects the collectors to liability, why do they do it? Because it works. Under a cost-benefit analysis, these abusive debt collection companies make a lot of money by using illegal scare tactics. If it leads to a few lawsuits, their profits make the potential liability worth it. Or, the company is so small that once it is served with a lawsuit it can quickly close shop and disappear. Therefore, the best defense against these companies and their illegal ways is the knowledge that their representations of pending criminal charges are flat out lies.
As a Board CertifiedConsumer Bankruptcy Attorney, I see people considering filing for bankruptcy each and every day from Sarasota, Port Charlotte, Fort Myers, Cape Coral,Lehigh Acres and Naples. One of the most common asked questions about bankruptcy is: Can I File Bankruptcy Right Away? The answer is yes and no. Yes, because you can. No, because you cannot just file bankruptcy without a detailed analysis of your complete financial situation.
The decision to file for bankruptcy protection, whether it be a Chapter 7 or Chapter 13 is not an easy decision anymore and should not be taken by the consumer very lightly. A great deal of thought and work goes into each and every petition that is filed with the United States Bankruptcy Court.
Also, please do not assume that anything is relevant to your situation, unless you have received the appropriate time, attention and legal advice from your attorney. Of course, there is a lot of "street talk" all over the internet about the ins and outs of bankruptcy. Unfortunately, there are many inaccuracies on the internet. This less than truthful information can hurt you, and it may cost you quite a bit of money.
Since the internet is not a confidential place, I strongly suggest that you consult with a Board CertifiedConsumer Bankruptcy Attorney personally to determine whether the issues that apply to your specific case are problems or not before you make any final decisions regarding filing for bankruptcy.
The reason many people want to file right away is because of the opportunity to take advantage of the Automatic Stay. One of my colleagues at the Bankruptcy Law Network, Cathy Moran, explains what the automatic stay is better than anyone. Yes, a reprieve from your creditors can be a powerful tool, and it can provide you with some time to catch a breath and gather your thoughts. However, if used improperly, it could also work against you.
As a Board Certified Consumer Bankruptcy Attorney, I speak with many people about filing for bankruptcy and their debts. Medical Bill bankruptcies are a very real and growing problem. Don't get me wrong, this is not a new phenomena that suddenly came to rise like the epidemic or pandemic known as swine flu. People have always had to deal with medical bills when either they or a loved one became sick or were injured. However, it seems that over the last few years, medical bill bankruptcies have been on the rise.
I define a medical bill bankruptcy as a consumer bankruptcy where the medical bills incurred either directly or indirectly caused the individual to seek bankruptcy protection. Many people are forced to file for bankruptcy protection just for one illness or an injury that occurred after they lost their health insurance. Alternatively, other people file for bankruptcy after a long series of financial issues which started after a job related injury or medical problem and over time the financial hole became deeper and deeper.
Sometimes these medical bills are paid by health insurance or worker's compensation insurance, but, when a person is out of work because of a medical issue, how are they going to pay their other monthly obligations, like the mortgage, car payment, insurances, etc. What about the Dr. visits, co-pays, and prescriptions? What about the procedures that are not covered under the insurance policy? Can you imagine making a medical decision based upon whether your health insurer will cover the procedure because you cannot afford it? What if you cannot afford the procedure?
What about consumers who lose time from work because their spouse or child is sick? The stress of the illness alone will cause that person to become sick. Usually, that same individual may lose their job if they miss too much time from work. If you lose your job, you may also lose your health insurance. Even though health insurance isn't what it used to be, any health insurance is better than no health insurance. Still, many of our clients are incurring a significant amount of medical bills despite having private health insurance. They still face co-payments, sky high deductibles and non-covered procedures.
If we can learn one thing from medical bankruptcies, it should be that the health care system is broken, and it needs to be fixed. I don't know how to fix the problem, but I wish I could. I can only see how it changes people's lives forever.
Let's face it, bankruptcy is a very emotional issue. When you tack on medical bills, debt collectors hired by the medical providers, and the stress of knowing you cannot pay your doctor, it gets a bit overwhelming. Families on the brink of destruction often come into my office to discuss their horrifying experiences. No one wants to file for bankruptcy protection; however, bankruptcy provides the only glimmer of hope for many families. Bankruptcy can provide that fresh start that people need . I believe people are resilient and can bounce back from unbelievable circumstances.
Declaring Bankruptcy is one the most difficult decisions that a person will ever have to make in their lives. So, when you are faced with financial problems, the first decision you should make is to hire the attorney with the skill and experience to help you navigate through these unchartered waters. But where do you start. You start by looking for a Board Certified Attorney in Fort Myers, Port Charlotte, or Naples.
As the only Board Certified Consumer Bankruptcy Attorney in Southwest Florida who handles only consumer cases, I realize that Bankruptcy is much more than a financial issue.
Depending upon the individual, bankruptcy can be devastating emotionally, physically, and financially. Individuals who are experiencing the loss of a home need to take steps to regain control of their lives and their finances. The choice of which Bankruptcy Attorney you should use will be the first step on the road to recovery.
But the question is: How do you find an attorney who can help? First: You can ask around but that would let your friends and relatives know what is going on in your life. Many times, my clients want to avoid this option. Remember, the decision to attend a free consultation is really an interview. You, the client, are interviewing attorneys, so that you can make an informed decision about where to place your hard earned dollars.
Many of my clients have never been inside lawyer’s office before. Trust me, there is nothing to be scared of, without clients, we wouldn't have offices at all. Many people coming in for initial consultations are usually nervous and shy. This is not the time to be shy, you need to ask questions about the attorney's experience, firm and the handling of your file.
Second: Many people look in the phone book, or they ask a friend or google bankruptcy attorney on the internet. All of these methods will work with a varying degree of results.
In this instance, I would do as much research as you can on the attorney and the lawfirm. Read the firm's advertisements. Go to their website and really look it over. Is it helpful or is it generic? Has it been updated? Do they have a blog? Does the attorney write for other blogs? Is he or she a member of NACBA or NACA?
Once you have selected an attorney that you believe can help, you will need to take the next step on your adventure. Let's face it, you can read a web page, and it may sound good. But, a fancy website does not a good attorney make. In order to really get a sense of the law-firm’s culture, you will have to call and speak to someone. Once you take that next step, you will acquire more information that will be critical to your decision.
Ask yourself these questions, in no particular order:
What was the overall impression of the call? Cold or Warm?
Does the firm answer its own calls?
Did you speak to someone or were you sent to voice-mail?
Did the person greet you warmly?
Did the person sound sincere?
Did the person put you at ease?
Did the person work to schedule you an appointment at a mutually convenient time for you and the attorney?
Did the person offer free information by mail, e-mail or facsimile prior to the consultation, or, if you asked for information, how was your request received?
Could you feel the person’s smile on the other end of the line?
Did you leave the call with a good impression or a bad impression?
The answers to these questions will probably determine whether you will be attending a free consultation with that attorney or not.
The Florida Consumer Collection Practices Act protects Florida residents from Unfair Debt Collection Activites. The statute sets forth the prohibited practices;
Florida Statute: 559.72 Prohibited practices generally.--In collecting consumer debts, no person shall:
(1) Simulate in any manner a law enforcement officer or a representative of any governmental agency;
(2) Use or threaten force or violence;
(3) Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6);
(4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;
(5) Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;
(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;
(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;
(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;
(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;
(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare;
(12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney;
(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor;
(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;
(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents when requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt;
(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, Jane Doe" or "Deadbeat, John Doe";
(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor;
(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication; or
(19) Cause charges to be made to any debtor for communications by concealment of the true purpose of the communication, including collect telephone calls and telegram fees.
Carmen Dellutri was recently asked several questions by the News Press as part of their ongoing series Road To Recovery. You will have to wait about 30 seconds to get through the preliminaries but the information provided should be useful to many of you. Or you can sign up for one of our blogs and have our blogs e-mailed to you directly.
The Senate will vote either today or tomorrow on a bill that could give Bankruptcy Judges the ability to cramdown home mortgages to the present level owed on the home. Currently, Bankruptcy Judges cannot cramdown first mortgages on debtor's homesteads. In today's market, now is the time and place for this bill to be passed. If you are a reader of this blog or any other blogs that I write for, you know how important this bill, as passed by the House of Representatives, is for the people of Southwest Florida, especially Cape Coral and Lehigh Acres.
So, either today or tomorrow we will know if our elected officials have sold us out to the Banks and Mortgage Companies. My bet is that they will, and for each elected official that sells us out for political gain, I say vote them out. There is no issue that is more important to the people of the United States right now than housing. If you are not sure of where you will be sleeping tonight, how can you be a productive American at work. The issue of housing is core to our economy, and the jokers in Washington are playing politics with the Banks. They are in discussions with banks that we the people own. Why do the banks have any say in this legislation? Aren't we a democracy (Rule by the People)? Sure, as long as you can hire a lobbyist with a politician in his or her back pocket. These are things that baffle my mind. Let's wait and see if they do the right thing.
