Debt Collectors Calling You?

Know Your Rights

When people come into my office, one of the first things they talk about is the endless calls from debt collectors both at work and home.   If you are receiving calls and letters from debt collectors on consumer debt i.e. debts incurred for personal, family and household purposes, here is the law you need know. 

1.     First Contact-  The first communication to you by a debt collector whether on the phone or in writing, must (a) describe the purpose of that communication and (b) inform you that any information that it obtains from you will be used for collection of the debt.

2.     Disclosure of Identity-  Whenever a person representing a creditor or debt collection agency contacts you, the person must correctly identify himself and must not misrepresent himself  or the entity he represents.

3.     Right to Dispute Debt-  When a debt collection agency initially contacts you or within five days of the initial contact, it must notify you in writing of your right to dispute the debt and to obtain verification of the debt, and it must provide you with verification if you request it.  If you do  not believe the debt is enforceable i.e. the lender doesn’t have the original note, it was not properly perfected or the amount of the debt is incorrect, this is a right time to request verification and dispute the debt.

4.     Right to Stop Communications- You have  the right to require a debt collection agency to stop contacting you!!!  In addition, your spouse,parent (if the debtor is a minor) or guardian can also require that such communication stop. To do this, it is necessary that you ask the debt collection agency IN WRITING, to do so.  While such a notice halts communications, it does not stop the debt collection agency from filing a lawsuit to collect on the debt.

5.     Obligation to Respect Your Privacy – You absolutely have the right to specify what times are ok and what times are not ok for debt collectors to call you.  Collectors are permitted to act on the assumption that anytime between 8 a.m. and 9 p.m. debtor’s local time are convenient to the debtor, but a collector cannot assume that those times are ok once the debtor notifies the collector that any portion of that period is, in fact, inconvenient and unsuitable for the debtor.  In addition, the debtor can also specifically request that the collector not contact the debtor at work.

6.     Communications to Your Employer  A collector may only communicate with your employer to verify your employment, to locate you, or to garnish your wages. 

7.     Communications with Family Members-  A collector is prohibited, with certain exceptions, from attempting to collect a debt by communicating information regarding the debt to any of your family members.  However, a collector can communicate with your spouse, can contact any family member to locate you and contact your parents if you reside with them.  The California statute prohibiting contacting family members no longer applies once the debt becomes a judgment.

The above highlights your rights in California with respect to collection of consumer debts.  If you are receiving calls and letters from debt collectors, I urge you to seek legal counsel before entering into any debt consolidation programs either with the lender or a third party. I see people every day for a FREE 30 minute consultation at my offices located in Walnut Creek, Antioch and Brentwood.

WE ARE A DEBT RELIEF AGENCY. WE HELP PEOPLE FILE BANKRUPTCY RELIEF UNDER THE BANKRUPTCY CODE. THIS INFORMATION IS NOT PROVIDED AS LEGAL ADVICE AND SHOULD NOT BE RELIED UPON IN MAKING ANY DECISION REGARDING A VOLUNTARY DEFAULT, SHORT SALE, FORECLOSURE OR BANKRUPTCY.  THIS INFORMATION IS NOT A SUBSTITUTE FOR OBTAINING TAX & LEGAL ADVICE REGARDING AN INDIVIDUAL SITUATION.             

© 2011 Joan Grimes



Penny Wise, Pound Foolish - Filing Bankruptcy without a Bankruptcy Attorney

When a person is experiencing financial problems and knows a Bankruptcy must be filed, it is very tempting to consider filing without an attorney.   However, before you start down the road of filing on your own and opening up a GOLD MINE for the bankruptcy trustee and your creditors, consider the following:

1.  If you miss even one exemption for which you are entitled or the timing of bankruptcy filing is not correct, all the savings you made by filing on your own are GONE.  If you do not properly exempt assets, the bankruptcy trustee WILL take your assets and sell them for the benefit of creditors.  The Trustee is not there to help or educate you!  Their job is to maximize the recovery for creditors AFTER paying themselves.  Let me tell you that this is happening every day.  I can’t even begin to tell you the number of times I have seen trustees take money from bank accounts, tax refunds, jewelry and vehicles because the Debtors did not have representation.  

2.  If you omit property either intentionally or inadvertently, the trustee can take the omitted property and sell it for the benefit of creditors or can move for a denial of discharge.

3.  If you miss or don’t include debts, either intentionally or inadvertently, the debt may be deemed nondischargeable or the court may move for dismissal.

4.  If you don’t understand the Means Test, you may not qualify for bankruptcy or may end up filing the wrong type of bankruptcy case.

5.  If you have a business and your bankruptcy case is not filed properly, you may end up losing the business or assets of the business.

6.  If you are on title to bank accounts, personal property or real property with relatives, the trustee or creditors may attempt to take the property even if you claim to have only bare legal title versus an equitable interest in the property.  Do you understand the effect of inheritance after a bankruptcy filing?

7.  If you don’t understand real property law, you may end up filing an unnecessary bankruptcy or alternatively may increase your personal and/or tax liability by completing a short sale or foreclosure prior to the bankruptcy filing.

8.  If you don’t understand tax law and own real property or have significant amounts of debt, don’t even think about filing bankruptcy on your own especially if you have assets such pensions, IRA, 401k or other assets such as annuities.  You don’t want to trade bank and credit card collectors for the IRS or State Franchise Board.  The fact that you currently do not have equity in the property is irrelevant.

In conclusion, filing bankruptcy on your own is almost always a very bad idea and ends up costing more in the long run because of assets lost or other problems with the bankruptcy case.   The above is just a few of the issues which must be addressed prior the bankruptcy filing.  Bankruptcy is very complicated area of the law and is a mine field for the unwary.   Even attorney who are general practitioners will not generally file bankruptcy cases because of the complexities involved in the filings.  If you don’t have the money to file bankruptcy at this time, you should still seek legal counsel and discuss your options.  Most bankruptcy attorneys allow payment of fees over time.  Don’t be a Penny Wise and Pound Foolish.  I see people every day for FREE 30 minute consultations at my offices located in Walnut Creek, Antioch and Brentwood.

WE ARE A DEBT RELIEF AGENCY.  WE HELP PEOPLE FILE FOR BANKRUPTCY.  THIS INFORMATION IS NOT PROVIDED AS LEGAL ADVICE AND SHOULD NOT BE RELIED UPON IN   MAKING ANY DECISION REGARDING A VOLUNTARY DEFAULT, SHORT SALE, FORECLOSURE OR BANKRUPTCY.  THIS INFORMATION IS NOT A SUBSTITUTE FOR OBTAINING TAX & LEGAL ADVICE REGARDING AN INDIVIDUAL SITUATION. 

GRIMESBKLAW.COM  (925) 323-7772  © 2011 Joan Grimes