Blog
Law Offices of Chance M. McGhee

Call Today for a FREE Consultation

210-342-3400

Archive for the ‘debt collectors’ tag

Debts Sold or Assigned to Collection Agencies

April 15th, 2019 at 7:00 am

What happens if you list a creditor in your bankruptcy case but, unknown to you, it sold the debt to a collection agency that you don’t list? 

 

Our blog post two weeks ago was about needing to list all your debts in a bankruptcy case in order to write them off. This is part of a series of blog posts about debts that may not get discharged (written off) in bankruptcy. The law says that bankruptcy does not discharge debts that are “neither listed nor scheduled” in the bankruptcy documents. Section 523(a)(3) of the Bankruptcy Code.

Special Scenarios

This raises some practical questions, including the following:

  1. Is a debt covered if you don’t list it but the creditor still learns about your bankruptcy case?
  2. What happens if you list the creditor but it had previously sold the debt to a collection agency?
  3. What do you do if you don’t know all of your debts because you’ve moved or lost track of them for some other reason?

We addressed the first of these last week, and discuss the second one today.

Debts Listed but Sold to Collection Agency

So you list the creditor on your bankruptcy schedules but after filing learn it sold the debt to another entity. Let’s assume you know the name and address of the new creditor or collection agency.

Debts Sold Before Your Bankruptcy Filing

Let’s start with the situation that the debt was sold to the new entity before you filed the bankruptcy case. You only find out about it after your filing. You either receive a new notice about it or dig up an older one you hadn’t found earlier.  What should you do?

There’s a decent chance that when the creditor you listed gets the bankruptcy notice it will forward it to the new owner of the debt. That would seem to be the sensible and business-like thing for it to do. Then the new owner would learn about your case even without being listed on your bankruptcy schedules. It would be covered by your bankruptcy case and the debt would likely get discharged. (See our last blog post about the creditor’s “actual knowledge” exception.)

Three Problems

There are three problems with this.

First, the listed creditor may simply not bother to pass on your bankruptcy notice to the new debt holder. The creditor no longer has any interest in the debt. It doesn’t owe you any favors. Why shouldn’t it just throw away the bankruptcy notice, and not inform the new debt holder? Then this new debt holder—the creditor you actually owe—may well never find out about your bankruptcy. You could easily continue owing the debt. It’s not safe to rely on the listed creditor to tell the new debt holder. It’s way too risky.

Second, even if the listed creditor does pass on the bankruptcy notice the new debt holder may not receive it. Or that debt holder may simply say it never received it. Good luck getting proof that it did. Collection agencies sometimes attempt to collect debts (purposely or inadvertently) that a bankruptcy has legally discharged. Without proof that the collection agency received notice of your bankruptcy filing you may still owe the debt. At the very least you’d have a much harder time getting them to stop trying to collect on the debt.

Third, even if the new debt holder does receive notice about your bankruptcy filing, it may not happen fast enough. You have no control when your listed creditor would get around to passing on information about your filing. There would be some delay between the time the creditor receives the bankruptcy notice and when it forwards it. In some situations the timing when the new debt holder receives the bankruptcy information is crucial. See our last blog post for a discussion about this timing issue.

Formally Adding Creditors to Your Schedules After Filing

So instead of relying on your listed creditor to inform the new debt holder it’s better to take the initiative.

First, you can formally add the new debt holder to your bankruptcy schedules, after your original filing. Your lawyer does this through an “amended schedule.” This is generally the safest option. Here’s one local bankruptcy court’s information about this procedure.

You do have to pay a modest additional filing fee (currently $31—see item #4 in the court fee schedule).  Plus your lawyer might charge you for the extra service (although not necessarily).  

Another option may be to contact the debt holder—either yourself or your lawyer—without using an “amended schedule.” This contact may fulfil the requirements of the “actual knowledge” exception. What’s critical is to have appropriate evidence of this contact in case you need proof of it later. There may be timing considerations. Also, you may be required to use an “amended schedule” based on local bankruptcy rules.

 Don’t decide this on your own. Talk with your bankruptcy lawyer for advice about resolving the situation the safest and most cost-effective way.

Debts Sold After Your Bankruptcy Filing

Creditors should not sell or assign your debt after they get notice of your bankruptcy case. At least they shouldn’t without informing the new debt holder about your bankruptcy case.

But sometimes they do sell the debt after getting notice about your bankruptcy case, whether intentionally or out of carelessness. Then the discussion above applies. If your bankruptcy case is still active, your lawyer should probably file an “amended schedule” adding the new debt holder.

The creditor’s sale or assignment of the debt can also occur between the time you file bankruptcy and the time the creditor receives notice of it. It may sell or assign the debt after you file bankruptcy but before it knows about your filing.

Again, the discussion above applies. You could hope that when this creditor gets notice of your bankruptcy filing it will inform the new debt owner. There’s a decent chance that it would do so, since the sale had just happened. Its file on you may still be open or would have just been closed a short time earlier. But again, your listed creditor may still not bother to inform the new debt holder. So, talk with your bankruptcy lawyer as soon as you find out about new debt holder. Remember that timing can be extremely important. In most situations filing an “amended schedule to add the new debt holder is the appropriate solution.

 

Strategies to Avoid Credit Card Debt

July 17th, 2015 at 10:13 am

Texas bankruptcy attorney, Texas chapter 7 lawyer, Texas chapter 13 attorney,Credit can be a helpful tool when a person faces unexpected financial hardship, but it is also a major contributor to many Americans’ debts. The convenience of credit and bonus offers from credit card companies motivate many consumers to spend out of their budget.

By understanding how to manage credit cards responsibly, it is possible to avoid the stress and uncertainty that come with insurmountable debt. Read on to learn three strategies to avoid credit card debt.

Keep Diligent Records of What You Spend

Online shopping has made it particularly easy to overindulge with credit cards. People can spend thousands with the click of a few buttons.

According to the Federal Trade Commission, one of the best ways to avoid serious debt from online spending with credit is to keep a record of purchases. This will help you understand how much credit spending is affecting your finances.

Do Not Spend More than Half of Your Credit Card Limit

As a general rule, you should never spend more than half of your credit limit. This will ensure that you have credit available in a financial emergency. It can also prevent compulsive spending.

When Dealing with Debt Collection Efforts, Always Keep a Record

Collection agencies love to harass debtors who have outstanding balances. They often call debtors several times each day to request payments.

Even if you are in collections, it is important to understand that you still have rights. There are laws that limit the strategies collection agencies can use to recover payments. Be sure to keeping a record of your communications with debt collectors to protect your rights.

If outstanding credit card debt has become too much for you to handle, call an experienced San Antonio bankruptcy attorney. At the Law Offices of Chance M. McGhee, we can evaluate your situation and create a debt-relief plan. This may involve chapter 7 or 13 bankruptcy, or a bankruptcy alternative. To get started, call our office today at 210-342-3400 for a free initial consultation.

Tips for Dealing with Debt Collectors

April 24th, 2015 at 9:53 am

Texas bankruptcy attorney, overdue bills, Texas chapter 7 lawyer, As anyone with experience can relate, debt collectors can make life stressful. The sound of a ringing phone is enough to cause anxiety, and although some collectors may be easier to work with, their persistent efforts can feel overwhelming.

Many debtors are surprised to find out that there may be several options available to help them climb out of debt. Some of these can stop the actions of collections agencies almost immediately. In the meantime, here are three tips for dealing with collector calls:

Answer the Phone

According to Creditcards.com, one of the most important steps when dealing with debt collectors is to be responsible and answer the phone. It is equally important to respond to any written notices. Even if the debt seems like it is not yours, do not let it stagnate. Ignoring calls and attempts to contact you can hurt your ability to work out a payment arrangement.

Note the Details of Each Call

There are several laws governing what collection agencies can and cannot do. It is important to take notes about each call just in case the collector is breaking the law. While on the phone, you should jot down:

  • The name of the collection agency;
  • The name of the agent you spoke with;
  • What time of day he or she called you;
  • The total balance owed;
  • Payment dates;
  • Any threatening or abusive language; and
  • Contact information.

If a collection agency has knowingly violated consumer laws, it may be required to pay you money. The only way to prove inexcusable activities, however, is to keep proper records of each conversation and transaction.

Do Not Agree to Payments You Cannot Make

The offer of scheduling a payment just to stop the calls seems tempting — even if you are not sure you can afford it. However, you should not make empty promises with debt collectors. Your credit report may show missed payments. It is better to ask the collector to call you another time when you have reviewed your finances fully and can schedule a realistic payment.

If you would like to end creditor harassment or inquire about other debt relief strategies including bankruptcy, contact an experienced San Antonio bankruptcy attorney. Call the Law Offices of Chance M. McGhee at 210-342-3400 for a free initial consultation.

Federal Rules Debt Collectors Must Follow

November 27th, 2014 at 1:00 pm

debt collectors in San Antonio, Texas bankruptcy lawyerWhen a person owes a defaulted amount on an account, such as a credit card or prior utility bill, the company who the original debt is owed to will often “charge off” that debt after a certain period of time has gone by. Someone who is struggling with overwhelming debt may have multiple accounts which have been declared charge offs by the original creditor.

There are certain guidelines a creditor must follow before they can charge off an account. If the account is an installment loan (such as an auto loan or mortgage), then the delinquency must be at least 120 days past due. If the account is a revolving credit account (such as a credit card), then the delinquency must be at least 180 days past due.

At this point, the creditor has three options for debt collection for the account. The company can continue to pursue collection themselves; they can hire a third-party collection agency to continue collection activity; or they can sell the debt to a debt buying company. Debt buying companies purchase debt portfolio from creditors and any funds then collected on the debt belong to the debt buyer.

Regardless of what option a creditor decides on, there are federal rules that have been established that a debt collector must follow. These rules were established under the Fair Debt Collection Practices Act (FDCPA) and include:

  • A debt collector must sent a written notice within five days of the first initial telephone contact which validates the amount of the debt owed;
  • Debt collection may only take place between the hours of 8:00 a.m. and 9:00 p.m.;
  • A debt collector may not contact a person at their workplace if they have been told either orally or in writing not to do so;
  • A debt collector must stop contacting a person if the person sends a certified letter to the debt collection telling them to stop all contact. The only exception to that contact would be the debt collector acknowledging the no-contact letter and/or contacting the person to let them know they will be filing a lawsuit or other activity;
  • If a person is represented by an attorney, then the debt collector must contact the attorney and not the person who owes the debt; or
  • Debt collectors may not harass, make threats, or make false statements in order to intimidate or scare a person into paying the debt.

If bankruptcy seems like a viable option for your financial situation, contact the Law Offices of Chance M. McGhee. San Antonio, Texas bankruptcy lawyer, Mr. McGhee has helped clients over the past 20 years regain control of their financial lives. Call the law firm at 210-342-3400.

What Are Debt Collectors Allowed to Do?

June 27th, 2014 at 7:00 am

bankruptcy attorney, certified letter, contact debtors, debt collection, debt collectors, San Antonio bankruptcy lawyer, Texas bankruptcy attDebt collectors are only allowed to do so much when trying to acquire money owed from their debtors. And while there are times when debt collectors will go beyond what they are legally permitted to do, having an understanding of what is permitted can help to be determine whether or not a collector has gone too far.

Method of Contact

According to the Office of Consumer Credit Commissioner (OCCC), various creditors use independent debt collection agencies to acquire money owed. With that said, debt collectors are permitted to contact debtors via phone, mail, in-person, telegram, or fax. But, they should not contact debtors prior to 8:00 a.m. or after 9:00 p.m., unless given consent from the debtor. Also, debt collectors should not contact debtors at work, especially if the collector knows the employer does not approve of these contacts.

If you are in debt, and are working with a bankruptcy attorney, a debt collector must contact the attorney about your debt and not you. Debt collectors can contact third parties, but only to find out where you live, what your phone number is, and where you work. They are not permitted to contact third parties more than once.

Within five days of contact, you must be provided with notice regarding how much money you owe, to whom you owe the money, and what you must do if you believe you do not owe any money.

How to Stop Contact

You can stop debt collectors from contacting you by sending in a certified letter to the creditor. The letter must tell the creditor to stop contacting you. This will not get rid of the debt that you owe, but it will end the contact from the creditor and their collectors. Also, make sure you keep a copy of the letter for your records. The only form of contact the creditor can make following the letter is to let the debtor know the letter was received.

If you or a loved one has been contacted by a debt collector, contact a Texas bankruptcy attorney who can help you deal with the situation.

Call today for a FREE Consultation

210-342-3400

Facebook Blog
Back to Top Back to Top