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Fair Debt Collection: 11.5.2.1 Generally

FDCPA cases often involve proof of the content of phone conversations with debt collectors. Recordings can be an invaluable way to develop the chronology of facts in a case and support a consumer’s claims. This subsection examines:

Fair Debt Collection: 11.14.2.2 Statutory, Minimum, and Multiple Damages

In general, statutory, minimum, and multiple damages are taxable. There may be an exception if they can be viewed under state law as a proxy for non-taxable compensatory damages. Some state laws treat them as a proxy for a compensatory award when public policy requires the consumer to be fully compensated, but problems of proof exist. Also, consider the situation in which the statute awards minimum or actual damages, whichever is greater.

Fair Debt Collection: § 1006.2 Definitions.

For purposes of this part, the following definitions apply:

(a) Act or FDCPA means the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.).

(b) Attempt to communicate means any act to initiate a communication or other contact about a debt with any person through any medium, including by soliciting a response from such person. An attempt to communicate includes leaving a limited-content message, as defined in paragraph (j) of this section.

Fair Debt Collection: § 1006.14 Harassing, oppressive, or abusive conduct.

(a) In general. A debt collector must not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including, but not limited to, the conduct described in paragraphs (b) through (h) of this section.

Official interpretation of 14(a) In general.

Fair Debt Collection: § 1006.18 False, deceptive, or misleading representations or means.

(a) In general. A debt collector must not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to, the conduct described in paragraphs (b) through (d) of this section.

(b) False, deceptive, or misleading representations.

(1) A debt collector must not falsely represent or imply that:

Fair Debt Collection: § 1006.26 Collection of time-barred debts.

(a) Definitions. For purposes of this section:

(1) Statute of limitations means the period prescribed by applicable law for bringing a legal action against the consumer to collect a debt.

(2) Time-barred debt means a debt for which the applicable statute of limitations has expired.

Fair Debt Collection: § 1006.30 Other prohibited practices.

(a) Required actions prior to furnishing information.

(1) In general. Except as provided in paragraph (a)(2) of this section, a debt collector must not furnish to a consumer reporting agency, as defined in section 603(f) of the Fair Credit Reporting Act (15 U.S.C. 1681a(f)), information about a debt before the debt collector:

Official interpretation of 30(a)(1) In general.

Fair Debt Collection: § 1006.34 Notice for validation of debts.

(a) Validation information required.

(1) In general. Except as provided in paragraph (a)(2) of this section, a debt collector must provide a consumer with the validation information required by paragraph (c) of this section either:

Official interpretation of 34(a)(1) In general.

Fair Debt Collection: § 1006.38 Disputes and requests for original-creditor information.

Official interpretation

1. In writing. Section 1006.38 contains requirements related to a dispute or request for the name and address of the original creditor timely submitted in writing by the consumer. A consumer has disputed the debt or requested the name and address of the original creditor in writing for purposes of § 1006.38(c) or (d)(2) if the consumer, for example:

Consumer Bankruptcy Law and Practice: 9.8.2.2.1 Methods of adequate assurance

The term “adequate assurance” is not defined in the Code, except to the extent that examples are given. Those examples are a “deposit or other security.”557 Certainly, the former of these is the most common in consumer cases. However, it is clear from the statute that there are other possibilities, including the voluntary granting of a lien on property of the debtor to be available in the event of a postpetition delinquency.

Consumer Bankruptcy Law and Practice: 9.8.2.2.2 Adequate assurance not always required

Other questions also arise as to the necessity for adequate assurance. Several of these concern the interplay of section 366 with state customer service regulations that govern the utilities. One question is whether normal shut-off procedures required by such regulations can be omitted by the utility. While the utility may argue that section 366(b), which allows termination after twenty days, overrides state regulations, there are several reasons that this argument should not prevail.

Consumer Bankruptcy Law and Practice: 9.9.3 Procedure

Theoretically, a party obligated to turn over property should do so immediately upon notice of the case. Sometimes this turnover happens when the party is notified of the bankruptcy. Thus, the first step that should be taken on behalf of the debtor is to give the creditor or other party in possession notice of the case, both informal and formal, in a manner similar to that used to give notice of the automatic stay.607

Consumer Bankruptcy Law and Practice: 9.9.4 Issues of Possession After Turnover

It must be noted that section 542 requires turnover of property to the trustee, and not to the debtor.616 Nowhere does the Code clearly spell out the procedure that should be used to transfer such property to the debtor in cases in which it seems clear the debtor should have possession of it. Thus, for example, if property that the debtor may exempt in a chapter 7 case is turned over to the trustee, the trustee may not feel free to relinquish it immediately to the debtor before the exemptions are approved.

Consumer Bankruptcy Law and Practice: 9.3.3.2.3 Overcoming the presumption that a case was not filed in good faith

A presumption that a case was not filed in good faith can be overcome by clear and convincing evidence.37 If the presumption does not arise, the debtor need only show that the current case was filed in good faith under the less demanding preponderance of the evidence standard.38 There is no reason to think that the evidence required to show good faith under section 362(c)(3) should be any different than that necessary to show good faith under current law.

Consumer Bankruptcy Law and Practice: 9.3.3.4 Order Confirming Stay Termination

Section 362(j) of the Code provides that, on request of a party in interest, the court shall issue an order under section 362(c) confirming that the automatic stay has been terminated. A similar provision is found in section 362(c)(4)(A)(ii), stating that the court shall promptly enter an order confirming that no stay is in effect as a result of the application of section 362(c)(4).