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Fair Debt Collection: 14.3.2.1 Potential Applications to Debt Collection

The Telephone Consumer Protection Act of 1991 (TCPA)37 amended the Federal Communications Act of 1934. It added a section to protect consumers from invasions of privacy such as automated and prerecorded telephone calls, junk faxes, and telemarketing calls.38 Since the TCPA has attractive remedies,39 it can be of significant benefit to debtors to the extent it applies to debt collection.

Fair Debt Collection: 14.3.2.2 Scope of the Prohibition on Autodialed or Prerecorded Calls to Cell Phones

As noted above, the TCPA prohibits the use of any automatic telephone dialing system or artificial or prerecorded voice message in a call to a cell phone, pager, or the like, or when the called party is charged for the call, unless the called party has given prior express consent to be called.54 The phrases “cellular telephone service” and “any service for which the called party is charged for the call” are alternative; it is not necessary that the cellular consumer be charged for the call.

Consumer Bankruptcy Law and Practice: 12.3.4.4.2.2 Child support, foster care, and similar payments

The definition of disposable income excludes child support payments, foster care payments, or disability payments received for a dependent child to the extent reasonably necessary to be expended for the child.155 If courts exclude these payments, which may well go to expenses for the debtor’s dependents, the debtor’s income will be reduced.156 But courts might exclude expenses for the child to the extent they are covered by these payments.

Consumer Bankruptcy Law and Practice: 12.3.4.4.3 Use of means test expense calculations for debtors with incomes above median income

Perhaps the most dramatic change in the disposable income test in 2005 was the use of the section 707(b) means test expense calculations for some debtors. Section 1325(b)(3) provides that for debtors whose current monthly income is above the state median income for the applicable family size, reasonably necessary expenses are to be calculated using the means test formula found in section 707(b)(2)(A) and (B) in order to determine payments to unsecured creditors.

Consumer Bankruptcy Law and Practice: 12.3.4.4.4 Administrative expenses

As a result of poor drafting, it is not crystal clear how administrative expenses are to be paid in a chapter 13 case. There has been some concern that the provisions incorporated from section 707(b) would limit the debtor’s administrative expenses to the ten percent cap found in those provisions.188 Such a limit would render almost every chapter 13 case impossible, because the expenses necessary to administer the case almost always exceed ten percent.

Consumer Bankruptcy Law and Practice: 12.3.4.4.5 Calculation of expenses for debtors below median income

Because of poor drafting it is not totally clear how secured creditors are to be paid by debtors whose incomes fall below state median income. Section 1325(b)(1)(B) uses language that was found in the subsection prior to the 2005 amendments to describe how much is to be paid into the plan for all creditors, but now states that this amount is to be paid to “unsecured creditors.” This phrasing created a possible interpretation that debtors below median income cannot pay any money to secured creditors.

Consumer Bankruptcy Law and Practice: § 830.50 Required Redaction of Debtor Tax Information

(a) The following redaction requirements apply to all tax information provided in accordance with section 521 of the Bankruptcy Code.

(b) Debtors providing tax information under 11 U.S.C. § 521 should redact personal information according to the criteria set forth in Fed. R. Bankr. P. 9037. A debtor should therefore redact personal identifiers in any tax information required to be filed with the court or provided to the trustee or creditor(s), in either electronic or paper form, as follows:

Consumer Bankruptcy Law and Practice: 11.4.2.8 Practice Tips

Many car lenders understand that economically they are far better off if the debtor continues to make payments, even without reaffirmation, than they are if they repossess the debtor’s vehicle, which is often worth far less than the amount of those payments. If they cannot scare the debtor into reaffirming, they simply accept the continued payments. Often, a creditor will let this policy be known.

Consumer Bankruptcy Law and Practice: 12.9.3.3 Credit Insurance

Another common type of contract that could be considered executory is the purchase of credit insurance that accompanies many consumer loans.545 More often than not, credit insurance is a very bad bargain for the consumer.546 Rejection of the contract and termination of its benefits results in very little loss of real protection.

Consumer Bankruptcy Law and Practice: 12.9.4 Procedure and Tactics

In a chapter 13 case, the debtor is not normally required to choose assumption or rejection until the time of confirmation of the plan.548 However, the other party may force an earlier election by requesting the court to set a specified earlier date by which the choice must be made.549 Additionally, although courts are split on this point, a lessor might seek relief from the stay prior to a decision on assumption or rejection, arguing that its interest in the property is not adequately protected

Consumer Bankruptcy Law and Practice: 10.2.2.1 Generally

The property that can be claimed as exempt under the federal bankruptcy exemptions (in states that have not opted out) is listed in section 522(d) of the Code. The list itself, adopted originally by the Bankruptcy Commission, was later generally followed in the Uniform Exemptions Act.54 Although Congress made some changes in drafting the Code and in later amendments, the commentary to the Uniform Act, therefore, is a good place to look for interpretive assistance.

Consumer Bankruptcy Law and Practice: 10.2.2.5 Jewelry—§ 522(d)(4)

Each debtor is allowed to exempt up to $1875 worth of jewelry, as long as it is held primarily for personal, family, or household use of the debtor or a dependent.91 As with the household goods exemption, unused exemptions applicable to “any property” may be used to increase this amount. For example, a jewelry item worth $2000 may be exempted using the $1875 jewelry exemption plus $125 worth of the exemption applicable to any property (sometimes referred to as the “wild card” exemption).

Consumer Bankruptcy Law and Practice: 10.2.2.6 Any Property—§ 522(d)(5)

One of the most important of the federal exemptions is the exemption that can be applied to “any property,” sometimes called the “wild card.” The amount of this exemption is $1475 per debtor,95 plus any unused amount of the homestead amount from subsection (d)(1) up to $13,950 per debtor.96 The applicability of the unused homestead exemption to any property, sometimes called the “homestead pourover,” was originally intended to equalize home owners and renters but was significantly reduced when a lim