ARE YOU RECEIVING CALLS (ON ANY PHONE) OR BILLS OR LETTERS ABOUT A DEBT THAT YOU DISCHARGED IN BANKRUPTCY?
Once a person files bankruptcy, the automatic stay prohibits most creditors from attempting to collect the debt unless they receive relief from the automatic stay from the bankruptcy court. In a Chapter 7 bankruptcy, the automatic stay expires 90 days after the bankruptcy was filed but, at that point (or soon thereafter), the bankruptcy court typically enters an order discharging the debtor’s debts (the “Discharge Order”).
The Bankruptcy Code and the Telephone Consumer Protection Act (“TCPA”) are independent statutes — a cell phone user who discharged a debt in bankruptcy is usually entitled to the protections of the discharge order and, more importantly, to the protections of the TCPA .
So, a person who receives calls on their cell phone after they discharged their debt in bankruptcy, may be suing the creditor in the United States District Court (the federal trial court) for violating the TCPA while also suing the creditor in Bankruptcy Court for violating the Discharge Order.
The TCPA applies to these accounts even if the called party discharged the account in bankruptcy but their are usually important steps that the discharged debtor must take.
WHY A CELL PHONE USER SHOULD REVOKE CONSENT TO CALL THEIR CELL PHONE
The TCPA prohibits any person (including creditors and debt collectors) from using an Automated Telephone Dialing System (“ATDS” or “robodialer”) to call any cell phone numbers or using an artificial or prerecorded voice without the user’s prior express consent.
In a bankruptcy case, the debtor usually had a business relationship with the creditor and credit card agreements and modern mortgage forms usually state that the borrower consents to receiving calls on their cell phone from the creditor who may employ a robodialer, artificial/prerecorded voice, or send an SMS text.
Most federal courts of appeals have ruled that borrowers can revoke their consent. Fortunately for cell phone users who reside in Florida, Georgia and Alabama, the United States Court of Appeals for the Eleventh Circuit allows cell phone users to revoke prior express consent by any reasonable means including verbally. (Borrowers who live in New York and other states whose federal courts are within the U.S. Court of Appeals for the Second Circuit have a big problem.)
HOW A CELL PHONE USER SHOULD REVOKE CONSENT
Almost all bankruptcy attorneys instruct their clients to instruct their bankruptcy clients to either : (1) provide their discharge information to the caller or even send the caller a copy of the discharge order; or (2) tell the caller to call their bankruptcy attorney. This can be a very expensive mistake especially if the caller continues to call the discharged borrower’s cell phone. These instructions also shift the expense of the creditor or debt collector’s scrub off to the discharged debtor and/or the debtor’s counsel.
Some courts have drawn thin lines. At least one court has ruled that the bankruptcy discharge does not automatically revoke any express consent for the creditor to call using an Automatic Telephone Dialing System (“ATDS”) or prerecorded voice. So, it’s important to know how to revoke consent effectively and document your potential case. In those courts, cell phone users who discharged their debts in bankruptcy must do more and should NOT say call my bankruptcy attorney. Instead, discharged borrowers should say :
“YOU ARE CALLING MY CELL PHONE. STOP CALLING!”
Following this simple instruction could mean the difference between receiving a paltry sum in bankruptcy court and $ 500 (or even up to $ 1,500) per call for a TCPA violation. The bankruptcy code requires that a discharge violation must be “willful” in order for the court to award exemplary damages and often require that such notice be a letter. Although telling the caller about a bankruptcy discharge may help, if a creditor continues to call they’ll probably argue that some technical point of the bankruptcy code or statute other than the TCPA confused them or provided them an excuse (or “defense”) to allow them to continue to call.
DOCUMENTING YOUR CASE
Preserving the evidence helps prove up your cases — including a bankruptcy discharge violation and/or a TCPA violation. If you are reading this article after a creditor or debt collector began calling you, do the best you can to preserve the evidence that you still have and document per these suggestions going forward.
If you know how to make screen shots and you’ve received calls from the creditor (or a debt collector), it is a good idea to capture as many of the screens showing that you received the call, the caller left a message, or texted you.
If you’ve already told the caller “You’re calling my cell phone. Stop calling”, it’s often very helpful if you’ve saved a screen shot showing the date, time, incoming telephone number and duration of those calls along with any other calls that resulted conversations. Creditors often lie about such conversations and play hide the ball with their recordings.
It is also a very good idea to maintain manual logs (usually hand written) showing all of the incoming calls listed by : (1) date; (2) time; (3) incoming telephone number that appeared on your caller ID; and (4) the caller’s identity as shown on your caller ID (even if it is “unknown”, “blocked number” or “_____”.) Manual logs and screen shots more accurately show the unanswered messages. In many cases, the providers no longer have records of such unanswered calls so this I highly recommend that cell phone users maintain manual logs and screen shots.
As a precaution, I also encourage people to access their account on My-Wirless-Carrier-DOT-Com (using a real URL) and print-out two copies of the call activity report. The carriers only display this information for free for a 30 to possibly 60 days so it is a good idea to look up how long they provide the data this way and visit their site frequently enough to capture all of these entries).
If you live in Florida, do NOT record the call. Florida is a two party consent state and recording the call may be a misdemeanor crime. Why take the chance of being prosecuted or even provide the caller leverage that they don’t deserve? If you live in a state other than Florida, please consult with an attorney who is licensed to practice law in your state and is familiar with your state’s wiretapping statute and case law before you decide whether to tape.
Click here for important suggestions about how to document your case by preserving the evidence.
It is useful to save the messages safely off line so that they are safe from ransomware, malware, viruses, lightning strikes, or other acts of god or nature.
THE TCPA OFTEN PROVIDES GREATER PROTECTION THAN A BANKRUPTCY DISCHARGE
The TCPA protects discharged debtors against robodialed calls to their cell phones IF they follow the correct steps and, instead of receiving only their damages for the bankruptcy discharge violation (which are often quite “nominal”), the cell phone user may be entitled to substantial awards depending upon the number of calls.
The TCPA provides that the called party is entitled to statutory damages in the amount of $ 500 per violation (per call) and, if the called party proves that the caller willfully violated the TCPA, the court may award damages of up to $ 1,500 per call. A lot can be at stake in a TCPA case.
The amount of damages appropriate in a bankruptcy discharge action are even less predictable but are typically less — far less. Very few attorneys are experienced in TCPA cases or in trying cases in federal trial courts – this experience is necessary in order to maximize many clients’ recovery.
When a person files bankruptcy, the automatic stay takes effect (subject to certain exceptions mainly related to “repeat filers”). Bankruptcy Courts can sanction creditors for violating the automatic stay by attempting to collect the debt through the use of telephones and/or the mail. But, bankruptcy courts are allowed to sanction the creditor who violates the automatic stay in an amount which can not exceed the debtor’s actual damages. Usually, any actual damages (excluding attorneys’ fees and costs) are minimal so few cases merit attention at this stage and most creditors eventually correct their system to recognize the bankruptcy. This situation changes considerably after the bankruptcy court discharges the debtor’s debts.
After the debtor completes his or her Chapter 7 or Chapter 13 bankruptcy, the bankruptcy court enters a Discharge Order. A discharge order is an injunction against the creditor from attempting to collect most types of debts.
The powers of the bankruptcy courts to enforce the discharge order vary widely depending upon which federal circuit court of appeals has jurisdiction over the bankruptcy court. In many circuits, actual damages are required. In most, if not all circuits, debtors who seek damages arising from emotional distress must prove that they satisfy the applicable law of the state in which the bankruptcy court is located. In many states, a “physical impact” and “outrageous conduct” is required. These are very tough standards and, unfair as it is, many consumers who have been abused can not satisfy those standards.
In the courts comprising the United States Court of Appeals for the Eleventh Circuit (Florida, Georgia and Alabama), the courts do not require actual damages in order to recover against a creditor who violates the discharge order. In the Eleventh Circuit courts can award damages against the creditor in an amount appropriate to coerce the creditor into ceasing its collection activities. Some judges award between $ 1,000 to $ 2,000 per violation if the creditor is continuing to violate the Discharge Order at the time of trial. If the creditor stopped its unlawful conduct, the amount recovered would depend upon the amount of actual damages and, in exceptional cases, punitive damages. The bankruptcy courts routinely award prevailing debtors their reasonable attorneys’ fees and taxable costs.
PROTECT YOUR FRESH START AND YOUR CELL PHONE
If you filed bankruptcy in Florida and a creditor (or debt collector) is : (1) calling you (regardless of the type of phone you receive the calls on); (2) sending you bills and/or other correspondence; and/or (3) has not updated
your credit report so that it is accurate, you are welcome to contact Mr. Petersen. Mr. Petersen has assisted hundreds of clients who have discharged their debts in bankruptcy with cell phone calls, landline calls, bills, dunning letters, inaccurate credit reports, privacy invasions, and other violations of consumer protection laws.
GET STARTED TODAY
Hopefully, this article provided you information so that you know you do NOT have to continue to tolerate unwelcome telephone cell phone calls and other violations of your bankruptcy fresh start. Mr. Petersen looks forward to learning more about your potential case and discussing how he can help you enforce your rights.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
Or provide a brief description of you potential case and along with your contact information for a free case evaluation.
(C) 2017 – 2018 Donald E. Petersen