Expert: Regan Shinski - 9/24/2009

Question
I am in the middle of a "pro se" bankruptcy action.  I just couldn't afford an attorney.  I have already had the 341 meeting and the trustee was impressed with paperwork and my efforts.  Today I had a collection agency contact me regarding a credit card debit that is listed in the original petition.  I returned their call (the company is Eastern Asset Management, LLC out of New York, I believe) and after finally reaching a live person I was met with foul language and threats.  While speaking with them, I started by asking who I was speaking with.  I was told I didn't need to know.  I then asked for their mailing address.  Once again, I was told I didn't need to know.  I asked to speak to a supervisor. When the supervisor answered the first words from his mouth were "What the F*** do you want".  I politely asked for the information again and was told the same thing.  I then asked for information as to what debit they were contacting me about.  He told me "You know what we are calling for.  We've sent five letters to you."  I told him that I have received nothing from his company.  He started swearing at me again.  Come to find out, he didn't even have a correct address for me and the street that he gave me doesn't exist in my area.  I then explained to him that I have filed for Chapter 7 bankruptcy protection.  The profanity increased to an intolerable level and I interrupted and stated "this conversation is over" and I hung up.  This company is not listed in the bankruptcy action at the time of the call (but is now).  After contacting the original creditor, I found out that they charged off this debt and no longer own it, the debt was purchased from this company.  The credit card company did receive notification of the bankruptcy.  What actions, if any, can be taken against this collection agency for their actions towards me?  I know they are not allowed to treat me in this manner, but I don't know where to take this from here or if I should just drop it.

Answer
Hi Randall:

No, they are not allowed to treat you that way.  The Fair Debt Collection Practices Act (FDCPA) strictly forbids it.

Pursuing it is another matter.  BTW, this is coming from someone who tends to be more litigious than most.  If this is the only instance, I would drop it.  Was the call recorded - legally?  If not and it's only based on this, I believe your case is weak.  It would be your word against theirs and you have the burden of proof.

You can try and pursue further contact with the collection agency (CA# to get further or more documented violations but your bankruptcy will actually hinder you.  #Why would you even need to contact them at this point if the account is now listed in bankruptcy?#

The other big problem you are going to have is damages.  Since the account is being discharged in bankruptcy, how exactly were you damaged?  Loss of credit?  Higher interest rates?  Denial of credit?  Defamation of character?  These are all tough to prove in your case.  Since you are filing BK, I assume there are other debts, so anything with credit and rates cannot be argued solely to this account.  Defamation requires a third party and this was a two-party phone call.  You could have a mental anguish or abuse, but that is typically much worse and difficult to prove.  Punitive damages are in addition to actual damages and usually in more egregious cases showing a pattern of intentional behavior.

If you are determined to pursue, you have to be familiar with the FDCPA, so start there.  Get copies of your credit reports, you should do this for your BK anyway.  See how it is listed.  Dispute it directly with the reporting agencies.  At the same time send a certified letter to the CA asking for debt validation under the FDCPA.  Wait 30-45 days for responses.  Repeat as needed.  The idea is to get a documented PAPER trail of their FDCPA violations.  After the first or second round of letters, you can try calling them on the phone.  I normally don't recommend that, but that is the basis for your complaint against them.  You need to have either a better trail or, ideally, a recorded conversation showing their abuse.  Make sure you are LEGAL to record in your state.  It will either be a one-party of two-party consent state.  If it is a two party, you must notify them in the beginning of the call that it is being recorded.  This obviously hampers your efforts to get verbal abuse evidence.  The timing of the bankruptcy again hinders your ability to call them or them to discuss with you.

If you feel you have evidence and violations of the FDCPA, you have to file a complaint/lawsuit against them.  Most are filed in federal court.  You can do this yourself or use an attorney.  Some work on contingency.

If the account is not listed on your credit reports, you cannot dispute it.  That angle of the case also disappears.

I'm trying to be as objective and present all options I can to you, but the reality is the more I type the more I really think you should drop it.  you really would have a long road to travel on this one - with a shot in the dark chance.  This really would have to fall into place for you.  However, the choice is obviously yours and yours alone.  Again, simply, if you pursue, you need more calls #preferably legally recorded) or a paper trail of more "traditional" violations of the FDCPA.  Don't violate recording laws or BK contact orders.

Good luck in whatever you choose.
Regan
mbscompany@aim.com

p.s.  Be sure you start your credit repair and rebuilding IMMEDIATELY after discharge.  It's even more important in this economy and tight credit market.  That is my area of expertise and would glad to help you at that point.  Drop me an e-mail.