Baxter & Baxter, LLP | Portland Oregon Bankruptcy

Unlawful debt collection practices are regulated by a patchwork of state and federal laws. The basic principal of fair debt collection law is that a consumer who does not owe a debt should not be “dunned” with collection calls or letters. Even when a consumer does owe a debt, state and federal law recognize that collectors cannot engage in deceptive, harassing, or unfair debt collection practices. Unlawful debt collection practices often overlap other fields of consumer law, including identity theft, false credit reporting, and elder abuse cases. In general, debt collectors may not engage in the following types of behavior: Harassment A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including: (1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. (3) The publication of a list of consumers who allegedly refuse to pay debts. (4) The advertisement for sale of any debt to coerce payment of the debt. (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. (6) The placement of telephone calls without meaningful disclosure of the caller’s identity. False or misleading representation A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including: (1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof. (2) The false representation of— (A) the character, amount, or legal status of any debt; or (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt. (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action. (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to— (A) lose any claim or defense to payment of the debt; or (B) become subject to any practice prohibited by the Fair Debt Collection Practices Act. (7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer. (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. (9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval. (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. (11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. (13) The false representation or implication that documents are legal process. (14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization. (15) The false representation or implication that documents are not legal process forms or do not require action by the consumer. (16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency. Unfair Collection Practices A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt, including: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. (2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit. (3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution. (4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument. (5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees. (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if— (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement. (7) Communicating with a consumer regarding a debt by post card. (8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

Basic Information about Bankruptcy Deciding whether to file bankruptcy is a very serious decision. The majority of bankruptcies are precipitated by circumstances outside a person’s control — loss of a job, divorce, or significant illness. A recent study published in the American Journal of Medicine concluded that 62.1 percent of the bankruptcies were medically related because the individuals either had more than $5,000 or 10 percent of their pretax income in medical bills, mortgaged their home to pay for medical bills, or lost significant income due to an illness. On average, medically bankrupt families had $17,943 in out-of-pocket expenses, including $26,971 for those who lacked insurance and $17,749 who had insurance at some point. The stress of these events is compounded by collection letters and calls, and the fear of losing a home to foreclosure. What is Bankruptcy? When a person or business is mired under inescapable debt, they can petition for bankruptcy. Once the initial petition is filed, all collection efforts, including lawsuits, foreclosures, and garnishments must cease. After the bankruptcy judge hears the case, an order is entered which discharges most debts, or in the alternative creates a repayment plan. The most common types of bankruptcy for individuals are Chapter 7 and Chapter 13 of the Bankruptcy Code. The majority of consumer bankruptcy filings are Chapter 7 cases, and many cases that are filed as Chapter 13 bankruptcies are later converted into Chapter 7 cases. In Chapter 7, a debtor surrenders his or her non-exempt property to a bankruptcy trustee who then liquidates the property and distributes the proceeds to the debtor’s unsecured creditors. In exchange, the debtor is entitled to a discharge of most of their debt. Certain debts, such as spousal and child support, student loans, some taxes, will not be discharged even though the debtor is generally discharged from his or her debt. It is possible to reaffirm some debts, such a home mortgage or an auto loan. In Chapter 13, the debtor retains ownership and possession of all of his or her assets, such as their home and automobile, but must devote some portion of his or her future income to repaying creditors, generally over a period of three to five years. The amount of payment and the period of the repayment plan depend upon a variety of factors, including the value of the debtor’s property and the amount of a debtor’s income and expenses. Secured creditors may be entitled to greater payment than unsecured creditors. Benefits of Bankruptcy The primary benefit of filing for bankruptcy is the ability of a consumer to get a fresh start from past debt. In addition, once a petition is filed, it will stop any collection activity, including any bills currently due for credit cards, medical bills, or other bills. It will stop debt collector calls and collection letters. It will temporarily stop a home foreclosure. Depending on whether the debtor files under Chapter 7 or Chapter 13, the final bankruptcy order can either discharge most of a person’s debts, or create a repayment plan to repay some or all of the consumer’s debts over a three to five year period. Should You Hire a Bankruptcy Attorney? Any individual can file for bankruptcy on his or her own behalf without a lawyer. However, hiring a bankruptcy lawyer may be beneficial. First, the lawyer can advise you on what type of bankruptcy you qualify for, and which types of bankruptcy are better in your case. An attorney can also help you plan for bankruptcy to help you retain the maximum amount of your property and assets, and claim the maximum amounts of exemptions from your creditors. Finally, an attorney can help you negotiate or litigate against your creditors if they dispute parts of your petition.

BOISE, Idaho – (AP) Property owners at four struggling and bankrupt resorts in Idaho, Montana, Nevada and the Bahamas have filed a $24 billion federal lawsuit against Credit Suisse, saying the bank gave predatory loans to the resorts’ investors as part of a scheme to take over the properties. See more …