Don’t answer your cell phone! New bill would allow collectors of goverment debt to robocall you!

In a move that is not typical of Democrats, the Obama administration is pushing a bill that would make it easier for the private collection industry to robocall your cell phone when you owe a debt to the government.  Robocalling is when a collector calls your phone number endlessly, excessively, and ceaselessly, until you tear your hair out or throw your phone away.

This proposal is tucked into the deficit reduction bill that is in Congress now according to an AP article and it is intended as a means to collect more money for the government.  This law applies to debts owed to government agencies. These debts are primarily student loans but I suppose the law could apply to any government debt like back taxes, tickets, fines, fees or penalties.

These debts may have been owed originally to the government but the government will transfer them to private debt collection companies who want to robocall your cell.  The department of education apparently has the largest share of these debts at $28 billion that they have passed out to 22 private collection companies.

A a Boston-based consumer law center spokesman says in the article that this “is just going to lead to more harassment and abuse, and it’s not going to help the government collect any more money.”  The spokesperson goes on to say that people aren’t paying their student loans because they have not been harassed enough but they are not paying these debts because they can’t find a job.  The administration as of yet has no estimate of how much money they expect to collect from this practice.

I agree that it is likely that very little money will actually be collected by allowing robocalling of cell phones.  This new practice will just result in more stressed out people who cannot answer their cell phones for fear of getting one of these collectors on the line.  My bankruptcy clients which I interview every day typically are broke and out of work and they want very much to pay their bills but they cannot.  They universally have the desire to pay the bills but not the means.

I believe in the old saying that you can’t get blood from a turnip.  If people have no money and no job then no amount of phone calls will change reality.  If you mistakenly pick up a call and talk to one of these collectors then you will get no sympathy and just demands to pay.  If you say you have no money they won’t believe you and tell you to borrow the money.  These collectors are incentive driven and they don’t appear to care what you have to say as they get paid as much as 17% of what they collect from you.

The FTC (Federal Trade Commission) regulates the collection industry.  The FTC receives more than 100,000 complaints a year from the collection industry alleging harassment, demands for ridiculously large and unaffordable payments, and threats of jail time (which is illegal under the Fair Debt Collections Practices Act).  Apparently the collection industry receives more complaints than any other industry in America.

This move by the Obama administration perplexes consumer groups and Democrats alike.  The article points out that this bill aligns the administration more closely with the collection industry.  Democrats normally are more friendly to those in debt and generally Democrats protect consumers from additional potential harassment.  Many Democrats opposed the creditor friendly bankruptcy reform bill of 2005. (Joe Biden supported the law as he was from Delaware where many credit card companies are incorporated).  Many Democrats are now indicating that they can’t support this bill.

Hillary Clinton sponsored a bill a few years ago to make student loans dischargeable in bankruptcy.  That bill went nowhere though and these student loans are still non-dischargeable in bankruptcy.  So are the other government fines, fees, penalties, and most tax debt.  But the point is that they are not going unpaid because people are not being robocalled enough.  People have no jobs and no money and that is why payment is not forthcoming.

Robocalling by private collectors is currently allowed under Federal law on landlines but only individually dialed calls are allowed to on cell phones.  Since more and more people have only cell phones now the collection industry has been lobbying the administration for this change in the law according to a spokesperson quoted in the article.  Apparently the lobbying has worked as the Obama administration has heard the call and pushed for this law.  The spokesperson says that robocalling is the most “efficient” way of collecting debts.  If you have ever been on the other end of the line that is receiving these robocalls you may have a different view as I have.

This is a terrible idea that will collect little money and result in the increased harassment of people with no means to pay these debts.  My clients come into my office already tapped out and they have no extra income even when we get their credit card debts discharged in bankruptcy.  If these people are not paying on these loans it is probably because they have either no job and no income or they are working at a reduced rate and barely affording their current bills.

If you are in this situation or you know someone who is, send them to myself of another bankruptcy attorney in your area.  We can help them discharge the credit card and other private debts so that more money is freed up to pay the non-dischargeable government debts like the student loans.  You can work out a payment plan for the student loans if you can afford one.

If this law is passed then debt collection will become that much more invasive, annoying and bothersome.  My advice will then be: don’t answer your cell!

I am a San Diego bankruptcy attorney.  For more information please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com.  For a free consultation on bankruptcy or debt please call (619) 702-5015.  Call now for free credit report and analysis! 

If you or someone you know may need to file a bankruptcy get my FREE E-BOOK: “13 THINGS YOU SHOULD DO TO PREPARE FOR YOUR BANKRUPTCY FILING by e-mailing me at: farquharesq@yahoo.com.

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Update on debtor’s prisons: Wall Street Journal confirms they are returning. I say let my people go!

(See my most recent debtors prison blog here: http://bit.ly/I2qMO2 .

I wrote about this in a previous blog but now the Wall Street Journal has confirmed that there is indeed a widespread use of what appear to be debtor’s prisons in many states in America even though such practices were outlawed federally and in most states  in 1833.  This practice is increasing with the deepening and lengthening of this recession.  So just when people are hardest hit by job loss, high unemployment, higher commodity prices, and housing price collapse, they are also getting hit with being put in jail for owing purely private debts.

Some judges appear to be on board with this.  One is quoted in the article saying “wish I could do it more” and “It’s often the only remedy to get people into court and paying their debts”.  No matter to the judges if the debtors can’t pay because they have no money and no job.

These debtor’s prisons were outlawed almost 200 years ago for a reason.  It makes no sense to jail a person who owes money.  It costs more to jail them than could ever be collected from them.  It breaks up whole families, subjects people to the humiliation and danger of jail, and can leave them emotionally scarred for life.  If you don’t believe that this is happening now then check out the stories below.

Also a debtor’s prison can subvert the legal system.  Hundreds of years ago they were used by people to get their enemies out of the way.  The creditors knew that the people they had jailed were not going to pay but they wanted them in jail for revenge often times.  There are other motives for jailing people for debts like putting the fear of jail into everyone so they never dare to not pay any debt.

I believe that our ancestors actually knew better than we did which is why we should give them more respect.  They gave us the Constitution and they outlawed debtors prisons in 1833 for a reason.  They realized then what we have forgotten now.  In a free country debtor’s prisons are extremely harmful to the populace and they should be banned altogether and they should not be allowed to creep back into operation.  No one should ever be jailed or fear jail for owing a purely private debt.

Debt collection companies use our taxpayer-funded court and prison systems to collect their private debts.  It doesn’t matter to them how much it costs because they are not paying for it and they are just eventually getting paid from it.  If they find a friendly judge like the one above then so much the better.

And now for the horror stories.  One man in Indiana, pictured with his kids, spent two nights in jail for a $4,000 debt.  What did they tell the kids when they asked where’s daddy?  What if he is a single dad?  Another from Carbondale Illinois spent five days in jail for failing to pay a $275 debt.  In a previous blog about debtor’s prisons I talked about a woman handcuffed and carted off to jail who kept there all night while she stayed awake and shivered from the cold.  She wasn’t told until the next morning even what the charge was.  It was of course non-payment of some private debt.  Another was threatened with jail by the judge in the case “indefinitely” until he began making payments to some lumber company.

Another man in Indiana in 2009 answered a knock on his door to find the deputy sheriff there with a warrant for his arrest.  He was arrested in front of his two kids and taken to jail.  There he spent two nights and he was stripped searched and sprayed for lice.  He described it as “the scariest thing that ever happened to him”.  It turned out that he owed around $4,000 to the loan company for his truck which was probably a deficiency balance.

The most troubling thing is that he stated in the article that he did not even know he was being sued.  He was finally let out of jail after two days after he agreed to pay $1,500 to this company for the truck.  But this person it seems was not properly served and had no idea he was being sued until he was summarily thrown in jail for merely owing money to a private party.

Often the people who are thrown in jail are destitute and can’t afford rent and food let alone these debts.  Are we to let them languish in jail “indefinitely” or forever because they cannot pay?  Are we then not returning to some dark ages?

It’s far worse too if there has been some mistake.  The debt collectors say they rarely make mistakes but that is not my experience.  They easily could have the wrong person or the wrong amount as they tack on all sorts of fees.  They can also easily fail to serve a person the lawsuit so the jailed person may have no warning of what is coming.

My clients often have their debts double or triple over the years before they discharge them in bankruptcy.  You have a right to demand debt validation according to the Fair Debt Collection Practices Act but many debtors don’t demand validation and others are arrested and jailed without warning before they know what is even happening.

Some states’ regulators are fighting back.  Illinois is seeking to revoke the license of at least one debt collector and Kentucky is seeking to do the same.  Sometimes these companies have been granted a vast number of arrest warrants against individuals for non-payment of a private debt.  The Federal Trade Commission is also investigating but in the meantime debtors are still going to debtor’s prison with the full blessing of many judges.

In fact 5000 such arrest warrants for debts have been issued since 2010 in just nine counties that reported in the one-third of states that allow this.  But what about the nonreporting counties?  Many counties don’t report so we don’t even know how many people are languishing in illegal debtor’s prisons across the country.  It seems that the illegal arrest warrant issuing has increased substantially along with the economic crisis.

Washington state has passed a bill requiring collectors that they prove (or validate) debts before an arrest warrant can issue for that debt.  Florida is issuing special training sessions to judges so they know about the abuse that can result from this.  In McIntosh County in Oklahoma 1500 arrest warrants were issued which is up from 800 the year before.  950 received arrest warrants from Salt Lake City courts and Maricopa County Arizona issued 260 in 2010.  This problem is not going away but continues to increase.

I know from my clients that people have no more money this year than last year but the arrest rate is increasing.  And these arrests are illegal according to federal laws and according to all states.  Debtor’s prisons were outlawed so how is this happening?  These arrests need to be challenged by lawyers whenever and wherever they occur in my opinion until some precedence can be established that future debtors can rely on protect them from jail.

In California I am not currently aware of people being issued arrest warrants for owing purely personal debt but be aware of situations that could amount to debtor’s prison.  Courts always maintain that they put people in jail for violating a court order and not for owing debts and thus they get around the constitutional prohibitions.  Some creditors in some states have used this loophole to just get a judge to order payment of the debt and when payment is not made then the judge issues an arrest warrant for failing to follow a judicial order.  This amounts to the exact same thing as a debtor’s prison.

In California they have not gone there yet as far as I have seen.  Collections are still a responsibility of the creditor once a judgment for the debt has been issued by the court.  We in California are thus luckier than many other states.  But creditors can demand that debtors attend a “debtor’s exam” and the creditors can have a court issue the order.  Failure to attend one of these can result in an arrest warrant being issued and can result in a debtor being put in jail.  So be careful if a debtor’s exam is ordered if you have unpaid debts in California.  It can possibly be used by creditors as a back door way of getting you in jail for purely private debts.

Remember that filing bankruptcy results in an immediate stay being created which blocks any further collection efforts being used against you.  This would include any use of debtor’s exams and presumably it would require your release from jail for any failure to pay any debt.  It would be hard to file for bankruptcy if you are in jail so it’s better if you beat them to the punch and file before things get this bad.

I am a bankruptcy lawyer practicing bankruptcy law in San Diego California.  For more bankruptcy or debt related info. (including debtors prison) please visit my website at www.farquharlaw.com and www.freshstartsandiego.com.  Or call me directly for a free consultation at (619) 702-5015.  Call now for free credit report and analysis! 

For a free e-book: “13 THINGS YOU SHOULD DO TO PREPARE FOR YOUR BANKRUPTCY FILING” please send a request by e-mail to: farquharesq@yahoo.com.

Why you should file bankruptcy if you have debts you cannot pay

In celebration of reaching 50 blogs I thought I would update one of my most popular articles to date.  In this article I talk about all of the reasons why you should file bankruptcy.

I find that my clients want to file and they need to file but they are also apprehensive about  filing bankruptcy and they are concerned that bankruptcy is somehow shameful, wrong, or deceitful.  I try to get them to see that it is none of these things and that there are very good reasons to file and great benefits to filing.  I also try to show them that it is a legal, moral, and ethical thing to do that is as old as the bible and that corporations do it whenever they can.

You get a fresh start, you get peace, freedom, anonymity, your credit score will improve, you can keep most of your assets.  I also try to explain that times are tough, you need your money, and that bankruptcy is their bailout and things will probably get worse for them if they don’t file because collectors will not stop trying to collect from them.

I try to get my clients to see all of these things about the benefits to filing.  Often the biggest hurdle is the psychological block that they have to bankruptcy itself.  So please read my article and see if you should also possibly file bankruptcy if you have debts you cannot pay.

 1)  You get a fresh start.  Filing for bankruptcy is powerful and useful tool which allows you to discharge most of your debts and usually keep most of your assets.  You get a “fresh start” with your life and you can begin again financially without the burden of debts you cannot pay.

You can also avoid the permanent debt trap from which it is very hard to escape.  Remember that bankruptcy is nothing new.  It is as old as the Old Testament of the Bible.  It has been around in some form for thousands of years.

The tradition in Old Testament times was to forgive debt regularly every 7 years.  This practice had a tremendously beneficial effect on society and its people as it can on you.  Even back in ancient times people knew that everyone in society is better off if individuals don’t carry around debt long-term.  They knew then that debtors were happier, healthier, and better and more productive citizens when their debt was forgiven.

How badly is the burden of all this debt affecting your everyday life now?  Do you feel the fear, the worry, the anguish we all feel when we are over our head in debt and we don’t know how to get out or what to do.  Bankruptcy is a legal, definitive action you can take that can make the debt all go away and put your life back together to give you a fresh start.

 2) Usually your credit score will improve over and above what your credit score would be if you didn’t discharge these debts.  By the time most people file bankruptcy they are so far behind in their credit card payments that bankruptcy will actually help improve their credit score.  Each month that you don’t pay those monthly credit card bills your credit score remains low.  Since most people are unlikely to pay their debts off this results in a permanently low credit score.

If you are in the same position then bankruptcy will certainly help you.  Your credit score will decrease immediately upon the filing of the case but when your bankruptcy is finished your debts will appear as “discharged in bankruptcy”.  Those debts discharged in bankruptcy will then no longer negatively impact your credit score.

You can now begin to rebuild your credit score with new credit.   You need to have credit in your name and use that credit wisely to increase your score.   If you charge things on your new cards and then pay your payments on time and pay the full balance every month you will slowly and steadily build up your score.  Every month that you pay those payments you should get points added to your score.  These points will add up over time.   You will get credit card solicitations after the bankruptcy discharge so use them wisely to increase your credit score.

Any other payments you make on time for financed items will help drive up your credit score.  Some of my clients reaffirm their cars in bankruptcy so they will get the benefit to their score when they make payments.  Others will finance a new car after bankruptcy for the same purpose.

 3) You get freedom– Shakespeare said “never a borrower or lender be” because as a borrower you become a slave to the lender.  If you owe credit card debt then you are a slave to those big banks to whom you owe money.  You pay huge amounts of interests to these big banks every month to service your debt.  These interest payments only serve to enrich very large corporations at your expense.

Filing bankruptcy can serve to free you permanently from both the worry and the financial strain of continual and unrelenting debt and the stress of the collection actions.  Your discharge is your key that unlocks the debt prison doors.

 4) You can keep most of your assets.  Most people can retain most of their assets in a bankruptcy.  That includes your house and your cars.  Many people think they will lose everything.  We have very generous exemptions in California that allow most people to keep everything they own.  If your house and cars don’t have any equity then you can certainly keep them.  If they do have equity then usually we can find a way to exempt them.

Your house is probably secured.  If there is equity in the home then there is a homestead exemption we can use to allow you to keep it.  Your car may be secured and if there is equity in that we can use the car exemption and the “wildcard exemption” together to keep your car (if we don’t have to use the homestead exemption on your house”).

Cars usually have no equity if financed and these days with housing prices low, many houses also have no equity.  Your personal furniture and clothes you can keep under a separate exemption and jewelry and “tools of the trade” also have their own exemptions.  Even your retirement fund, if it’s an IRA or 401k, is protected by federal bankruptcy law up to $1,000,000.

 5) You will get peace back in your life.  When you file bankruptcy your creditors must stop calling you on the phone.  Most of my clients have not answered their phone for some time before they actually consider bankruptcy.  Filing a bankruptcy case will stop all of these collection efforts with the miracle of the “stay” that is created once you file bankruptcy. This stay stops all creditors from contacting you in any way once they get notice from the Bankruptcy Court of the filing.

So remember that as far as you debts go, peace and tranquility are waiting to return to you if you file bankruptcy.

6) No one needs to know.  Many people are afraid of bankruptcy because they think that their landlord or their employer will find out about their bankruptcy and they believe they can be evicted or lose their job.  This is not true and you will still have anonymity if you file.  You don’t have to tell anyone that you filed bankruptcy and probably no one will know unless they do a public record search.  It is unlikely that this will happen though so your secret should remain safe.

Your landlord will probably not be notified especially if you are on a month to month lease.  Your employer need not know unless you already have a wage garnishment that needs to be stopped.  You cannot be fired from your job or thrown out of your apartment or home because you filed bankruptcy if your employer or lenders or landlord do find out.  Discrimination of this sort based upon a bankruptcy filing is illegal.

7)  You have other things to do with your money–   If you are like most people then you need the money you earn from working to pay for your own personal bills and pay for your family and their needs.  You don’t need to give this money to these large banks.  You don’t need to spend this money to enrich large banks for money you borrowed from them a long time ago.

If you earn less than is allowed in the means test then you can probably file bankruptcy and discharge your debts.  You can then use your money for other purposes than paying off old dischargeable debt.

 8) You have already paid the credit card companies back–  If you are like most of my clients then the debts that you owe are probably very old.  You have probably been making payments on these debts for years.  If that is true then you have already reimbursed the creditors for them.  By the time most people file a bankruptcy they have already paid back all of the money they borrowed plus some interest. This is because of the very high interest rates that credit card companies charge.

Remember that the banks borrow money at a very low-interest and then lend it to you at very high interest.  They keep the rest.  It is a most profitable business and the make lots of money doing it.  The banks want to keep you paying them this exorbitant interest indefinitely.  Some of you are paying as much as 30% interest on the money you borrowed.

Don’t make the mistake of feeling that you need to keep paying these companies.  You have already paid them enough so file a bankruptcy, discharge the debts and move on.

 9) Times are very tough and many people need to file more now than ever.  There is a recession on now and you need relief from your debt maybe more now than ever before.  Many people are unemployed and those who are employed don’t know if they may lose their job in the near future.  Even if your job is secure and you expect no pay cut, you still probably need your funds for your ongoing bills.  Why pay for old debts incurred long ago when the money you borrowed back then often went to pay for other bills?

Times are very tough in this recession so explore the possibilities that bankruptcy opens up today.

 10) Personal bankruptcy is your bailout – Corporations file bankruptcies all the time including the credit card companies that you owe money to.  They bail out with bankruptcy so why not you?  In addition many banks have received government bailout money to keep them going.  They then turn around and bug you for money.  That is your money they are receiving from the government but they are not giving you any breaks.

So if big companies can file bankruptcy and get your money sent to them so they can collect more money from you then why don’t you get your bailout?  File bankruptcy.

 11) The creditors absolutely will not stop trying to collect from you until you pay or you are dead or you file bankruptcy.  They only know one thing and that is to collect your debt with all of the interest and penalties that they can add.  They will continue to sell the debt to other collectors and these collection agents have a nationwide network.  They buy, sell, and trade these debts but they keep trying to collect.  They are like the Terminator in that movie.  They are like a machine which won’t stop until you are dead.

If you file bankruptcy then they must stop trying to collect the debt. They will then discard your debt because if they try to collect it after the bankruptcy discharge then they would be in violation of federal bankruptcy laws.

 12) Your situation will probably continue to get worse and worse if you don’t file bankruptcy or pay these creditors.  The collection efforts will increase in intensity and eventually the creditors will file suit.  Many people try to put their heads in the sand and hope the debts will disappear.  This is not the case though as the situation will only get worse.  The debts will grow in size as interest and fees grow.  Eventually some creditors will file suit and serve these on you.

If you do not file at this point then you could get a default judgment against you and they will use this judgment to collect money from you.  They can now lien your house and file a lien against you personally.  Some liens cannot be removed in a chapter 7.

In addition creditors with court judgments can garnish your wages so your income could decline.  They can also get access to your bank accounts and remove money from them legally to satisfy your debt.  You may need that money to pay a bill but it could be gone one day.  They can even call you into court for a debtor’s exam to get you to answer questions about your job, your bank account, and your general financial situation and they can get you in there every 6 months.

Not all of these things will happen to all people but these are the tactics creditors can use against you when they have a court judgment.  As you see here your financial situation will continue to get worse over time when you have debts.  It will not get better on its own and the debts won’t go away.  Therefore don’t delay and preserve your rights by exploring your options with bankruptcy.

(See here for my blog about what the bible has to say about bankruptcy.)

Thank you for reading my “12 Reasons to file bankruptcy article” and if I can be of any further help please call for a free consultation.  I am a San Diego bankruptcy attorney.  Please visit my websites at www.freshstartsandiego.com or www.farquharlaw.com.

Douglas G. Farquhar, Esq.

1901 First Ave. Suite 217H

San Diego, CA. 92101

(619) 702-5015  Call now for free credit report and analysis!

E-mail: farquharesq@yahoo.com

Websites: www.farquharlaw.com or www.freshstartsandiego.com.

For a free e-book: “13 THINGS YOU SHOULD DO TO PREPARE FOR YOUR BANKRUPTCY FILING” please send a request by e-mail to: farquharesq@yahoo.com.

Happy Halloween! Watch out for “Zombie” debt collectors! File bankruptcy.

Zombie debt is debt which you once owed but now it is actually beyond the statute of limitations for collection.  It dies a natural death after the statute runs.  It is therefore uncollectable legally but it is brought back from the dead like a zombie by debt collectors who buy it up for pennies and then try to collect it from you.  It can be a real problem for people as these zombie debt collectors attack unsuspecting people just like in a zombie movie.

What is worse is that the creditors can report the zombie debt to your credit bureau which can lower your credit score.  Some people will pay the debt  just to save their credit from ruination.  If you happen to convince one of these collectors that you don’t owe the debt then they can just sell it to someone else who will try to collect it from you.

The problem is how can you prove that it is zombie debt?  The debt collectors will just tell you to pay it even though it is beyond the statute of limitations.

It is true that you can usually win a lawsuit over zombie debt because the creditor will have a hard time proving that the debt is live and even that it is yours and that they own it.  But most people don’t respond to these lawsuits and the creditors get default judgments and they go right to collection with them.  That leaves you with a creditor with a judgment against you who can seize assets and garnish wages.

The good news is that bankruptcy solves the problem of zombie debt altogether.  You don’t need to argue about it or fight about it in court.  Bankruptcy will cause the zombie debt to be discharged regardless of whether you owe it or not.  You can even list the debt in your bankruptcy as “disputed” which means that you do not admit that you owe it.

Once you get your bankruptcy discharge then zombie debt is gone.   If the collectors try to collect it after a discharge then they are in violation of federal law.  Bankruptcy is how we have learned to shoot the zombies in the head so they do finally stay down.

Check out my website at www.farquharlaw.com.

I am a bankruptcy lawyer practicing bankruptcy law in San Diego.

Happy Halloween!