Using the FDCPA in Foreclosure Defense

If your home is under the threat of foreclosure, you are likely overwhelmed.  In addition to the harassing phone calls, homeowners facing foreclosure also have to try to “keep their head on straight” and make important decisions that affect their family’s lives—something that is almost impossible to do when a creditor is calling you multiple times every day.  This situation can certainly wreak havoc on anyone’s level of ability to handle stress, which makes fixing the problem even more difficult.  However, there is good news.  According to Section 805(a)(2) of the Fair Debt Collection Practices Act, your lender is prohibited from calling you about your home’s foreclosure if they know that you are represented by a lawyer.

 

That’s why if you live in the Miami, Florida area and are facing the threat of foreclosure, it is extremely important that you reach out to a qualified bankruptcy attorney who can help you find ways of debt relief such as Chapter 7 or Chapter 13 bankruptcy.  This kind of relief provides a legal means in which you can not only potentially save your home from foreclosure—you can also stop the harassing phone calls and stress related to them.   This “breathing room” will give you time to think clearly and do everything within your power to save your house and save your family the turmoil and emotional trauma of having to move out of the place they know as “home”.

If your lender harasses you after seeking counsel in a foreclosure, they will be in violation of both the Federal and Florida versions of the Fair Debt Collection Act.  Once you have told them the name and phone number of your attorney and that you don’t want them to contact you anymore (and sorry just shouting “Speak to my attorney” doesn’t work), any further phone calls from them could result in $4,000 fines for them and the opportunity for a lawsuit from you.  In our office, we deal with hundreds of collection calls each week so that our clients can have peace of mind when their phones ring.  It’s only been on rare occasions that we’ve had to remind the collection agencies about the law.

Know Your Rights When It Comes to Creditor Harassment

The Fair Debt Collection Practices Act (FDCPA) provides specific legal guidelines under which creditors must conduct their business dealings with debtors.  When these guidelines are not met, there is a clause in the FDCPA that provides debtors with the right to sue their creditors for unlawfully threatening, berating, harassing, or intimidating in order to collect a debt.

The FDCPA also sets a standard that collection agencies must operate by if they want to avoid potential lawsuits:

• They cannot contact your family, friends, neighbors, or employer.
• They are not permitted to call before 8 A.M. or after 9 P.M. in your time zone.
• They may not use racial slurs, obscenities, insults, or unreasonable threats are out of the question.
• They may not pretend to be an attorney or court employee, or create any communication that would look like it came from one if they do not hold the legal credentials.
• They cannot have you arrested for your unpaid debt.

If you find stress from your debt coupled with the stress of communication from collectors, it is your right to have them stop contacting you regarding the debt, as long as the collector is a third party and not the original lender of the loan.  There is a stipulation in the Fair Debt Collection Practices Act that if you notify a collection agency in writing that you no longer want to discuss this debt with them, the agency can no longer communicate with you except to either a.) advise you that collection efforts have been stopped or will be stopped or b) to inform you that they intend to take legal action against you to resolve the debt. 

The letter you send stating this request should include the following:

• Your name, address, and account number on the statement you received from them 
• The date
• A statement that you’re exercising your rights under the Fair Debt Collection Practices Act
• A specifically worded statement explaining that you no longer wish to be contacted concerning this debt