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Fair Debt Collection: 14.10.3 Protection for Taxpayer Rights

Any contract between the IRS and a PCA must prohibit the PCA from committing any act or omission that IRS employees are prohibited from committing in the performance of similar duties.586 These prohibitions include communicating at inconvenient times and places; contacting represented debtors (with certain exceptions); calling the debtor at work if the PCA knows the debtor’s employer prohibits such calls; and various other types of harassment and abuse.587

Fair Debt Collection: 14.10.4 Remedies for Violations by Private Collectors

The Internal Revenue Code (IRC) includes a civil remedy against a debt collector who recklessly, intentionally, or negligently disregards any provision of the tax code or any regulation under it.599 The taxpayer has the right to bring suit in federal court for “actual, direct economic damages,” with a cap of $1,000,000 ($100,000 in the case of negligence), plus costs.600 Unlike suits when the misdeeds are committed by IRS employees, the plaintiff need not exhaust administrative remedies.

Consumer Bankruptcy Law and Practice: 4.7.3 Modification

It is often possible to modify the plan, under the provisions discussed above, to accommodate new problems as they arise.122 The payments under the plan may be reduced, or even terminated, if the plan, as modified, still complies with the requirements of chapter 13.

Consumer Bankruptcy Law and Practice: 4.7.5 Dismissal

Occasionally, dismissal may be preferable to any of the other options. The debtor may at any time obtain dismissal as of right unless the case was previously converted from another chapter.131 This route may be particularly attractive if it appears that the case may be converted to chapter 7 against the debtor’s will and if the debtor has nonexempt property that they do not wish to see liquidated.

Consumer Bankruptcy Law and Practice: 4.8 Discharge

The final step in a successfully completed chapter 13 case, or in one ended under the hardship provisions,134 is the discharge. A discharge must be granted by the court “as soon as practicable” after completion of all payments under a confirmed plan.135 However, there are several other prerequisites that must be met to obtain the chapter 13 discharge.

Consumer Bankruptcy Law and Practice: 5.1.2 Roles for Non-Attorneys

As will quickly become apparent, most of the tasks involved in preparing a bankruptcy case for filing can be ably accomplished by non-attorney legal workers with a relatively small amount of training. This situation presents a significant advantage to busy offices. Of course, an attorney involved in a case prepared by non-attorneys must supervise and take ultimate responsibility for handling the case. The attorney should review the case prior to filing and at various points thereafter, with particular attention to ascertaining that non-routine circumstances are handled properly.

Consumer Bankruptcy Law and Practice: 5.3.1 The Initial Interview

The steps necessary to assure complete information will vary somewhat from case to case. For example, if no real estate is involved, a title search might not be necessary; if a client has clearly kept organized and complete records, counsel may often rely upon them with little risk.

Consumer Bankruptcy Law and Practice: 9.4.7 Non-Automatic Stays

None of the inclusions or exceptions to the automatic stay in any way limits the general injunctive power of the court, under section 105(a) of the Code, to stay other actions.289 Thus, if the automatic stay is found to be not applicable to a criminal proceeding based upon a bad check, the court may nonetheless be persuaded that the purpose of the action is really to collect the liability and thus to circumvent the bankruptcy.

Consumer Bankruptcy Law and Practice: 9.6.3.1 Giving Notice

An issue in some cases is whether the creditor has received actual notice. For damages to be available, the debtor must prove notice of the stay to the party enjoined.327 A telephone call or fax to a creditor or its counsel provides such notice,328 though later problems of proof could arise when the notice is not in writing.

Consumer Bankruptcy Law and Practice: 9.6.3.2.1 Introduction

The 2005 Act added complicated and confusing notice requirements by making amendments to section 342 with which both debtors’ counsel and the courts must comply. While some of the new language is terribly drafted and confusing, the amendments to section 342 have little practical effect.330

Consumer Bankruptcy Law and Practice: 9.6.3.2.2 Deletion of safe harbor in section 342(c)

Section 342(c)(1), as renumbered, was amended to delete language in the section that had stated the failure to provide a debtor’s name, address, and taxpayer identification (Social Security) number (now only the last four digits) does not invalidate the legal effect of a notice. It is unclear what deletion of this language means. Presumably effectiveness of notice will be determined by otherwise applicable law.

Consumer Bankruptcy Law and Practice: 9.6.3.2.3 Creditor notice request given prepetition

Section 342(c)(2) requires that notice from a debtor to a creditor be sent to the address specified by the creditor for receipt of correspondence, and include the account number, but only if the creditor has supplied both the address request and the account number in at least two communications sent to debtor in the ninety days before the petition was filed.

Consumer Bankruptcy Law and Practice: 9.6.3.2.4 Notice request in particular case

Section 342(e) allows a creditor to file with the court and serve on the debtor an address that it wants to be used for notices in a particular chapter 7 or chapter 13 case. Any notice provided by the court or the debtor more than seven days after such an address request is made must use the requested address. This provision appears to override the more general address provision of section 342(c)(2), though it does not expressly so state. This provision also neglects to include any coverage of notices from other parties, such as the trustee, United States trustee, or other creditors.

Consumer Bankruptcy Law and Practice: 9.6.3.3 Effective Notice Under Section 342

Section 362(g)(2) provides that a “monetary penalty” may not be imposed on a creditor under section 362(k) for violation of the stay if the creditor has not received “effective notice” of the order for relief as defined in section 342(g)(1). This provision, when it applies, precludes only the recovery of punitive damages under section 362(k)(1), so actual damages, which by the terms of section 362(k)(1) include costs and attorney fees, may still be obtained.

Federal Deception Law: 12.6.1 Background

Unsolicited bulk commercial email, commonly known as “spam,”107 is a problem for consumers for a number of reasons. Its low cost and anonymity attract fraudulent sellers. Pyramid schemes, miracle cures, pornography, and a host of bogus products are marketed by spam.108 Spam can contain viruses. Any response to spam, even to request that no further solicitations be sent, gives information to the entity that sent the spam and can undermine the consumer’s privacy.

Federal Deception Law: 12.6.2.2 CAN-SPAM Remedies

The CAN-SPAM Act gives enforcement authority to federal and state officials.135 State attorneys general can bring enforcement actions if they believe that a violation has caused harm to citizens of the state.136 In addition, the CAN-SPAM Act gives internet service providers (ISPs) a private cause of action to enforce it.137 There is no private consumer right of action.138 Any consumer private

Federal Deception Law: 12.6.3.2 FTC Rules

The FTC’s Mail, Internet, or Telephone Order Merchandise Rule157 provides a remedy for online fraud when the problem is failure to deliver or a delay in delivering merchandise.

Federal Deception Law: 12.6.3.3 Federal Criminal Statutes

Some ISPs and commercial websites have successfully sued spam senders under two provisions of the federal criminal code: 18 U.S.C. § 2701, which prohibits unlawful access to stored communications, and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which includes a prohibition on hacking into a computer.165 These cases involved spammers who harvested consumers’ email addresses from websites, contrary to the website’s posted policy, or sent spam with a forged return address so that replies and bounced-back messages went to the ISP.

Federal Deception Law: 12.6.4.2 Preemption

The application of state anti-spam laws has been sharply limited by enactment of the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“the CAN-SPAM Act”), which preempts much of the state law governing spam.170 The CAN-SPAM Act preempts state law “that expressly regulates the use of electronic mail to send commercial messages” but does not supersede state laws that prohibit “falsity or deception in any portion of a commercial electronic mail message.”171