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Consumer Bankruptcy Law and Practice: 9.7.3.1.2 Discovery

Either party may take discovery in connection with a motion for relief from stay.417 Although the full range of federal discovery opportunities is available, the short time limits require that discovery be completed with great speed to be meaningful. The normal time period allowed by the rules to provide discovery is in every case too long a period to wait unless the parties agree that the stay can continue pending discovery.

Consumer Bankruptcy Law and Practice: 9.7.3.1.3 Defenses and counterclaims

To the extent there are defenses or counterclaims that reduce or eliminate the right of the party seeking relief from the stay to proceed after the stay is lifted, they should be relevant to stay litigation and raised therein.418 For example, if a debtor claims that a lien does not exist because it was rescinded under the Truth in Lending Act, the stay should not be lifted to permit enforcement of that lien.419 Or, if a debtor’s defenses and counterclaims reduce the balance owing on an automobil

Consumer Bankruptcy Law and Practice: 9.7.3.1.4 Burden of proof

The Code provides that the burden of proof in stay litigation is on the party seeking relief from the stay as to the issue of the debtor’s equity in property and on the party opposing relief on all other issues.426 While this provision is not as clear as it might be, it apparently means that whenever equity is at issue, the party seeking relief must prove it.

Consumer Bankruptcy Law and Practice: 7.3.12 The Chapter 13 Plan

7.3.12.1 Generally

The most important document filed in a chapter 13 case is usually the debtor’s proposed plan. This plan, which only the debtor can propose, sets out how the debtor wishes to reorganize their financial situation. Its purpose, then, is to make clear how the debtor desires payments and distributions to be made in the case. The plan may be modified as of right before confirmation and also, with the court’s permission, after confirmation in certain circumstances.242

Fair Debt Collection: 14.3.2.7 Burden of Proof Regarding Exceptions

The general rule under the TCPA is that the person making the call has the burden of demonstrating that it falls within an exception to one of the TCPA’s prohibitions.172 Accordingly, the caller has the burden of establishing that it had the prior express consent of the called party to make an autodialed or an artificial or prerecorded call to a cell phone.173 This is consistent with the general rule that the party claiming the benefit of an exception in a federal statute has the burden of comin

Fair Debt Collection: 14.3.2.8.1 Private cause of action; relief

The TCPA offers an express private cause of action for actual monetary loss or $500 damages for each violation, whichever is greater.175 The statutory damage award can be trebled if the court finds that the defendant willfully or knowingly violated the statute or regulations.176 Since debt collectors who make illegal calls to a debtor’s cell phone usually make a series of such calls, the TCPA offers the possibility of a significant award even if actual damages are minimal.

Fair Debt Collection: 14.3.2.8.2 Who may sue

Generally, courts permit both the subscriber to sue, as well as the person who carries and regularly uses a cell phone, even though that person is not the subscriber.178 Thus, the person who carries and regularly uses a cell phone may sue, even if someone else is the subscriber.179 The owner of a cell phone also has standing to sue for calls made while the phone was in the possession of an investigator hired by the owner’s attorney.180 A non-debtor

Fair Debt Collection: 14.3.2.9.1 Jurisdiction and class actions

State and federal courts have concurrent jurisdiction over TCPA suits.183 Many courts have generally declined to exercise supplemental jurisdiction over defendants’ counterclaims against TCPA plaintiffs to collect on the underlying debt.184 One of the reasons that courts often cite is that exercising jurisdiction over these counterclaims would contradict federal policy concerns against automated telephone calls.185 However, this view is not univers

Fair Debt Collection: 14.3.2.9.3 Liability of creditors for debt collectors’ violations; corporate officers and individuals

Creditors are liable for improper autodialed or prerecorded calls to cell phones by their debt collectors.203 In a 2008 ruling, the FCC determined that: “[A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”204

Fair Debt Collection: 14.3.2.9.4 Statute of limitations and other defenses

Most courts have held that TCPA claims are governed by the general four-year statute of limitations for claims under federal statutes.214 Since the statute of limitations for a TCPA claim is set by statute, laches is not a defense.215

Neither good faith, nor the maintenance of reasonable procedures to avoid violations, is a defense to a claim involving the TCPA’s restrictions on robocalls.216

Fair Debt Collection: 14.3.3.1 Generally

Caller ID is a service that allows a subscriber to view the telephone numbers, including unlisted numbers, that are associated with incoming telephone calls.226 Caller ID issues related to debt collection can arise in at least two different ways.

First, debt collectors when calling consumers or third parties may “spoof” or falsify caller ID information to encourage those called to answer the phone. Spoofing is widespread, and only specifically illegal under certain circumstances.

Fair Debt Collection: 14.3.3.2 Spoofing and The Truth in Caller ID Act

The Truth in Caller ID Act of 2009227 amended the Telephone Consumer Protection Act to make it unlawful for any person to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The FCC has adopted Truth in Caller ID Act regulations,228 which closely follow the requirements of the Act itself.

Credit Discrimination: Introduction to Sample Discovery

These are sample forms and must be adapted to fit the facts of a particular case and local procedural rules. Note that the Federal Rules of Civil Procedure limit the number of interrogatories to twenty-five, including subparts. This limitation may be avoided only by leave of the court with written stipulation of the parties. The reader should be aware of this limit in cases of federal litigation and in litigation in state courts that similarly limit discovery.

Automobile Fraud: 8.11.4.2.5 Similar punitive damage awards

Courts look not just at comparable civil or criminal penalties, but also at punitive damages awards in similar cases.714 The amount of punitive damages awarded in other cases puts the defendant on notice of the potential award in the defendant’s case.715 Thus, when a previous automobile fraud case awarded a consumer relatively low actual damages, but granted punitive damages in a ratio of 27-to-1, the Eighth Circuit found this decision supported an award of punitive damages in a 25-to-1 rati

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.18 Mandatory duty of approved agencies to obtain prior consent of the United States Trustee before taking certain actions.

(a) By accepting the designation to act as an approved agency, an agency agrees to obtain approval from the United States Trustee, prior to making any of the following changes:

(1) Cancellation or change in the amount of the surety bond or employee fidelity bond or insurance;

(2) The engagement of an independent contractor to provide counseling services or to have access to, possession of, or control over client funds;

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.19 Continuing requirements for becoming and remaining approved agencies.

(a) To become an approved agency, an agency must affirmatively establish, to the satisfaction of the United States Trustee, that the agency at the time of approval:

(1) Satisfies every requirement of this part; and

(2) Provides adequate counseling to its clients.

(b) To remain an approved agency, an approved agency shall affirmatively establish, to the satisfaction of the United States Trustee, that the approved agency:

Consumer Bankruptcy Law and Practice: §§ 58.20(a) through 58.20(e)

To meet the minimum qualifications set forth in § 58.19, and in addition to the other requirements set forth in this part, agencies and approved agencies shall comply with paragraphs (a) through (p) of this section on a continuing basis:

(a) Compliance with all laws. An agency shall comply with all applicable laws and regulations of the United States and each state in which the agency provides counseling services including, without limitation, all laws governing licensing and registration.

Consumer Bankruptcy Law and Practice: §§ 58.20(f) through 58.20(j)

(f) Credit counselor training, certification and experience. An agency shall:

(1) Use only counselors who possess adequate experience providing credit counseling, which shall mean that each counselor either:

(i) Holds a counselor certification and who has complied with all continuing education requirements necessary to maintain his or her counselor certification; or