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A debt collector may not contact you at inconvenient times or places, such as before 8 in the morning or after 9 at night, your local time, unless you agree to it. Keep in mind that the word is "inconvenient."  It is you, and not the debt collector or the creditor that determines what is inconvenient.   The eight o'clock in the morning until nine o'clock at night number is merely a guideline. If you work at night and you sleep in the morning, that means that having them call you in the morning is inconvenient to you. All you have to do is tell the debt collector that you do not want them to call you before noon, for example, and if they call you after being told that at 10 AM, that violates the FDCPA. In other words, contrary to what a debt collector might have you believe, it is you, and not them, that is in charge.

And collectors may not contact you at work if they’re told (orally or in writing) that you’re not allowed to get calls there. Our advice is to always tell them to stop calling you at work, that it is in convenient to get calls at work, and that your employer does not want me to get calls at work. If you do that and the debt collector call you back after that that is a clear-cut violation of the law.

Should You Consider Bankruptcy?

The idea of declaring bankruptcy, wiping out certain debts or repaying them over time with court protection—no more hassles or nasty phone calls from menacing creditors – and then moving on more or less debt free has undeniable appeal to anyone faced with overwhelming debt.

But be careful. Compelling as it may sound, bankruptcy has a lingering and far-reaching impact that touches every aspect of life. Bankruptcy ruins credit, makes it difficult, if not impossible, to keep bank accounts and credit cards, can take some valued, and valuable, possessions, and makes it difficult to get on with necessities of life such as buying or renting a home or car, getting insurance and finding a job.

In fact, most financial advisors look at bankruptcy as a desperate last resort, when budgeting, credit counseling and other efforts to get out of debt have failed, and then only with the advice and guidance of an experienced bankruptcy attorney.

There are two basic types of personal bankruptcy, Chapter 7 and Chapter 13. Each must be filed in federal bankruptcy court, but certain conditions must be met before filing for bankruptcy under either chapter. The moment you file a bankruptcy case, an immediate automatic restraining order kicks in and gives you protection from the relentless creditors and debt collectors.

You must get credit counseling at your own expense from a government-approved organization (list available at here) within six months before you file and you must satisfy a “means test” to confirm that your income does not exceed a specified amount. That amount differs by state (also available here).

The bankruptcy code was overhauled drastically in late 2005 to encourage people with a steady income to use Chapter 13 instead of Chapter 7. Chapter 13 allows those with a steady income to keep certain property, like a home with a mortgage or a car that might be lost during the bankruptcy process. Under Chapter 13, the court approves a repayment plan where you give up part of your future anticipated income to pay some or all of what you owe, rather than surrendering property. In return, certain debts must be repaid. These include overdue school loans, child support, taxes, car loans, and home mortgage payments and, in some cases, all of your debts.

Chapter 7 allows you to “discharge,” in effect to erase almost all of your debts. A trustee is appointed to collect non-exempt property, sell it, and dole out the proceeds to your creditors. This is not an absolute solution: certain debts, among them past due child and spousal support, may not be excused; you risk losing your property; and, if you had transferred property to avoid the loss, some transfers can be undone. Unlike Chapter 13, there is no filing of a repayment plan with the court.

Chapter 7 and Chapter 13 filings are administered by someone known as a trustee. The bankruptcy trustee, appointed by the US Department of Justice, investigates the financial affairs of each debtor, can sell non-exempt assets, and convenes a “meeting of creditors” about a month after a case is filed. Each bankruptcy case is assigned a judge who makes rulings if called upon. Lawyers are not required, but you may want an seasoned bankruptcy lawyer to advise you about when to file and to guide you through the complex, heavy-paperwork process.

Chapter 7 usually takes about three months to complete but the case stays on your credit report for 10 years. Chapter 13 lasts from three to five years, depending on your circumstances, and remains on your credit record for seven years. Before discharge of the case under either chapter, you must receive certification for a completed course in financial management from an approved counseling agency.

At Hyde & Swigart, we believe you should consider this a last resort.  further, we have a number of strategies that might well keep you out of bankruptcy and cost you nothing.  In fact, you might actually make money.

The FDCPA covers personal, family, and household debts, including money you owe on a personal credit card account, an auto loan, a medical bill, and your mortgage. The FDCPA doesn’t cover debts you incurred to run a business.

How Do You Win These Cases?

The simple answer to this question is "experience." However, there's more to it than that. Winning a case depends in large part upon what kind of case it is that we're dealing with.

Debt Collection Cases

First of all, you need to understand that it does not matter if you owe of the debt or not. Debt collection statutes are designed to protect consumers from abusive debt collectors. The fact that you might owe the debt does not mean that you are not entitled to this protection. In fact, the courts have repeatedly ruled that whether the consumer owes the debt are not is irrelevant.

Secondly, debt collection statutes are basically "strict liability." That means that if the debt collector violated the law they are liable to you. It does not matter if they acted intentionally or unintentionally. Furthermore, debt collection statutes are very specific in their wording. These statutes make it very clear to everyone exactly what conduct is abusive and illegal. For example, if a debt collector uses false deceptive or misleading means while trying to collect from you they have violated the law and are liable to you for damages. As an example, suppose a debt collector calls you at home and lies to you. Or suppose the debt collector gets verbally abusive with you. Or suppose the debt collector speaks to a third party. They violated the law. If you sue them, they are liable to you for damages, and reasonable attorney fees and costs.

Third, we are very experienced in this area of the law. We can tell very quickly if you have been abused by a debt collector. You should not try to make this determination on your own. It is fairly complex. The best rule of thumb we can come up with is this-if a debt collector says or does something to you that just doesn't seem right, or just doesn't seem fair, they have probably violated the law. If you have any doubts, if you have any questions, you should contact us immediately so we can discuss your concerns.

Credit Card Defense Cases

Credit card defense cases are an entirely different animal. Nearly all consumers that are sued for credit card debts do not appear in court and lose by default. This is a huge waste. The truth of the matter is, if you have an experienced consumer rights attorney in your side you will prevail more times than not. This is because these debt collectors that sue you are so used to people defaulting they don't know what to do when someone actually properly defends the case. Often times, creditors do not have a contract that you signed. It may be that they're trying to collect money that they are not entitled to, or that they can't prove they are the own who actually own the debt. It may be that they are trying to collect interest that has not accrued. Furthermore, there are a large number of evidentiary issues that can be raised in fighting these cases. The short answer to the question how do you win on a credit card defense case is that you fight hard, know the law, know civil procedure, and count on the legal system to do the right thing. That is what we do, and we have a very good track record with regard to success.