Consumer Protection Law
Bankruptcy, Debt Collection, and Creditor Harassment: Legal FAQ
Being in debt is no picnic, especially when creditors start calling your phone and sending threatening letters. And the legal consequences of debt collection can be scary -- intercepting your tax return, garnishing your wages, seizing your assets, or taking you to court and obtaining a lien on your property.
But while it may feel like you're battling your creditors all alone, there are consumer protection laws that limit how debt collectors can contact you and even what they can say. Here are some other commonly asked legal questions when it comes to debt collection and creditor harassment, along with some helpful answers.
The Fair Debt Collection Practices Act prohibits creditors and debt collectors from harassing or abusing people who owe money, also known as "debtors". This includes making repetitious phone calls, failing to identify themselves as debt collectors on the phone, using obscene or profane language, or threatening violence or harm.
The Act also prohibits creditors from making false, deceptive, or misleading claims when attempting to collect a debt. Debt collectors can't falsify the amount you owe, threaten to have you arrested over your debt, or misrepresent themselves as attorneys if they are not.
According to the federal Consumer Financial Protection Bureau, you can sue debt collectors that violate this law, and they must pay your attorney's fees if you win, including damages.
Some people choose to file for bankruptcy if they are unable to repay creditors and pay their bills. An automatic stay is a legal mechanism that automatically stops lawsuits, foreclosures, wage garnishments, and all other collection activity against a debtor the moment they file a bankruptcy petition.
This means that if you choose to file for bankruptcy the court would place an immediate, but temporary hold on debt collection and creditors should limit contact during that time. Keep in mind, however, that the stay is temporary, and depending on the outcome of your bankruptcy proceedings, debt collectors could resume legal contact later.
This answer depends upon the type of creditor that is after you. While the automatic stay protects you from most creditors taking action to collect the debts, some creditors may remove this protection by petitioning the bankruptcy court. The automatic stay can temporarily protect you from foreclosures on your home or from being evicted, as long as your landlord didn't already obtain a judgment to retake possession of the rental property before you filed for bankruptcy.
If a debt collector continues to call you after you filed for bankruptcy, tell them about the filing. You may need to provide them with either the case name, number and filing date, or a copy of the petition that shows you filed it.
First, be sure you listed the debt about which they're calling along with other debts and creditors you filed with the bankruptcy court. Second, if you hired a bankruptcy attorney, you should let the debt collector know, and they must contact your lawyer instead while the bankruptcy is pending. And tell your lawyer as well. If a debt collector willfully violates an automatic stay, the bankruptcy court can hold the creditor in contempt and punish them with fines or even incarceration.
Finally, if the bankruptcy court discharges that debt, the creditor or debt collector is permanently barred from attempting to collect the debt. While this sounds great in the short term, filing for bankruptcy can have long-term consequences on your credit. Be sure to consult an experienced bankruptcy lawyer to weigh your options.
Yes. A creditor may object to the court discharging a debt if you have filed for bankruptcy under Chapter 7. The creditor will have the burden to prove that your debt should not be discharged, and will try to meet this burden by demonstrating any fraudulent acts or other reasons allowed by law, including:
- Failure to provide requested tax documents
- Failure to complete a course on personal financial management
- Transfer or concealment of property with the intent to hinder, delay, or defraud creditors
- Destruction or concealment of books or records, or failure to account for lost assets
Similarly, creditors may request that the court revoke a previous discharge. Bankruptcy proceedings and dealing with debt collectors during bankruptcy can be legally complex, and it always helps to have a qualified bankruptcy attorney on your side.