Saturday 19 December 2009
It depends on whether the repossession company or creditor still has the car and hasn’t sold it. If the creditor still has the auto, it will most likely be deemed that it is still property of the bankruptcy estate (that means it is property subject to the bankruptcy court’s jurisdiction) and the bank simply holds it as a custodian. See In re Pluta, 200 B.R. 740 (Bankr. Mass. 1996). Your lawyer can then possibly demand the auto be returned to you after you file bankruptcy.
However, this begs the question whether you want it back. It is quite common for people to have the desire to retain their automobile, but an objective outlook is necessary. Is your car a benefit to your financial balance sheet or not? Does the car have equity? In other words, is the auto worth more than the amount owed to the lender? If it was repossessed than there was a loan that was probably in the arrears, and it is unlikely there is equity. And if not, it is a negative on your balance sheet, and probably not worth keeping. But, there may be a way a bankruptcy lawyer can eliminate the excess debt through a chapter 13 plan. Also, there may be a way to keep the car through alternative financing. Lastly, there is a possibility that you could obtain financing for a different car through one of the lenders that specialize in post-bankruptcy financing. In any event, it behooves you to consult an experienced bankruptcy attorney to learn the options available to you under bankruptcy or a different alternative.
Showing posts with label creditor. Show all posts
Showing posts with label creditor. Show all posts
Thursday, January 28, 2010
Thursday, January 21, 2010
A debt collector is calling my cell phone using an auto-dialer, what can I do?
16 January 2010
You might have grounds to sue them! It depends on whether you gave the original creditor or the debt collector “prior express consent” to call you on your cell phone. You may want to ask yourself, did you write the cell phone number on your original credit application? (Did you have the cell phone number when you applied for the account?) If the answer is yes, then you may not have a claim, but often debt collectors do research and gather information about you, including your cell phone number, prior to initiating their calls. So, the fact they have your cell phone number may not mean that you gave it to them voluntarily. If they are calling you using an auto dialer without your prior express consent, it is generally illegal.
What is an auto-dialer call? It is a call that is computer generated, that, upon answering, the automated voice engages you until a real human being is available. It may ask you to wait “for an important message.” These are the kind of calls many people simply hang up on once they realize a real person is not on the other line.
The law providing this protection is not found in the Fair Debt Collection Practices Act (FDCPA) (15 USC 1692 et seq.), the Act containing most debt collection law that applies to debt collectors. But interestingly enough under a law that was passed in 1991 aimed towards the telemarketing industry titled the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227). The penalties are either the actual monetary loss caused by the violation or $500, whichever is greater, per call. (In all likelihood this will be the $500.00.) A court may also award up to three times this initial penalty (again probably $1,500.00 maximum) in its discretion, if it finds that the defendant acted willfully or knowingly.
If you think you have a claim and are considering taking action, you should contact an attorney that practices consumer protection law.
Contact: George E. Bourguignon, Jr.
(413) 746-8008
gbourguignon@bourguignonlaw.com
www.bourguignonlaw.com
You might have grounds to sue them! It depends on whether you gave the original creditor or the debt collector “prior express consent” to call you on your cell phone. You may want to ask yourself, did you write the cell phone number on your original credit application? (Did you have the cell phone number when you applied for the account?) If the answer is yes, then you may not have a claim, but often debt collectors do research and gather information about you, including your cell phone number, prior to initiating their calls. So, the fact they have your cell phone number may not mean that you gave it to them voluntarily. If they are calling you using an auto dialer without your prior express consent, it is generally illegal.
What is an auto-dialer call? It is a call that is computer generated, that, upon answering, the automated voice engages you until a real human being is available. It may ask you to wait “for an important message.” These are the kind of calls many people simply hang up on once they realize a real person is not on the other line.
The law providing this protection is not found in the Fair Debt Collection Practices Act (FDCPA) (15 USC 1692 et seq.), the Act containing most debt collection law that applies to debt collectors. But interestingly enough under a law that was passed in 1991 aimed towards the telemarketing industry titled the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227). The penalties are either the actual monetary loss caused by the violation or $500, whichever is greater, per call. (In all likelihood this will be the $500.00.) A court may also award up to three times this initial penalty (again probably $1,500.00 maximum) in its discretion, if it finds that the defendant acted willfully or knowingly.
If you think you have a claim and are considering taking action, you should contact an attorney that practices consumer protection law.
Contact: George E. Bourguignon, Jr.
(413) 746-8008
gbourguignon@bourguignonlaw.com
www.bourguignonlaw.com
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