Complaint Review: Portfolio Recovery Associates LLC - Norfolk Virginia

Robert, money gets put directly into the consumer's pocket, just not as much as the attorney's receive in the same case. The consumer (discharged debtor) has to also prove actual damages in his case against the collector. If the collector has been particularly egregious than punitive damages can be awarded by the BK judge. Remember, we are not talking about a violation of the automatic stay where the funds would go to the BK estate. We are talking about a violation of the discharge injunction - so the consumer gets (in his pocket) the damages awarded by the BK judge.

It is true, the amount of the sanction awarded against the creditor is large and the consumer is not entitled to anything other than the damages that can be shown to the court. The rest of the funds go to attorney fees and in some cases there are contingent awards to be paid to the court.

As example of that is  McClure v. Bank of America, Adv. No. 08-4000 (Bankr. N.D. Tex. 11/23/09). 

Bank of America sold two discharged debts to a collection agency to collect this previously discharged debt. The McClure's took Bank of America and the collections agency to the bankruptcy judge and the court awarded: $2500 to the consumer; just under $80,000 in attorney's fees and conditional sanctions in the amount of $100,000 to BOA and $50,000 to CFG (the collections agency). Search the case above for details on the award.

There are other cases where the awards were larger, $66K awarded to the consumer, like In re Adams, Case No. 04-003875-5-SWH.   However, in that case it was Ocwen Loan Servicing not reporting correct information to the CRA's after the debtors discharge so it was easier to prove damages.

So to the OP, I see you are in California,  the 9th district. The 9th district will only allow you to bring your action against the creditor in the Bk court according to Walls v Wells Fargo (the FDCPA is preempted by the BK code).

If your BK attorney is no longer available, there are other attorney's that can handle your case.  Sometimes just a letter from a BK attorney mentioning the discharge injunction will get them off your back.

Thanks Robert, I did leave that out.

I normally don't consider anything other than the statutory damages, because it is nearly impossible to get any other damges awarded.

I have actually been in court on several occasions on FDCPA matters and it usually doesn't work out, especially for the consumer who doesn't have money for a lawyer.

Burden of proof is just that, a burden$$$.

What I should have said was: the bankruptcy law has much more teeth in this situation than the FDCPA. The FDCPA is limited to $1000 penalty. BK sanctions have no such limit. Naturally, they are only available to the person that has had a discharge and a subsequent collection attempt from a debt collector on a discharged debt.

Going to the bankruptcy court to stop a debt collector may result in the BC sanctioning the debt collector, however, this does not put money in the consumer's pocket.

A successful lawsuit for FDCPA violations puts money DIRECTLY IN THE CONSUMER'S POCKET.  Further, the FDCPA does NOT LIMIT DAMAGES to $1000.  The FDCPA allows for ACTUAL DAMAGES with NO LIMIT in addition to STATUTORY DAMAGES OF UP TO $1000 plus reasonable attorney fees.

What I should have said was: the bankruptcy law has much more teeth in this situation than the FDCPA. The FDCPA is limited to $1000 penalty. BK sanctions have no such limit. Naturally, they are only available to the person that has had a discharge and a subsequent collection attempt from a debt collector on a discharged debt.

Going to the bankruptcy court to stop a debt collector may result in the BC sanctioning the debt collector, however, this does not put money in the consumer's pocket.

A successful lawsuit for FDCPA violations puts money DIRECTLY IN THE CONSUMER'S POCKET.  Further, the FDCPA does NOT LIMIT DAMAGES to $1000.  The FDCPA allows for ACTUAL DAMAGES with NO LIMIT in addition to STATUTORY DAMAGES OF UP TO $1000 plus reasonable attorney fees.

Also, each state has its own set of rules for debt collections.

Some are much tougher and allow for much greater damages than the FDCPA.

Even with the FDCPA, be sure to file your case in federal court as the judges are better versed in it and more willing to award "costs". I have seen that $1000 turn into more than $10,000 in federal court just due to the "costs" awarded by the judge.

And, if you file multiple actions a few weeks apart, you can get multiple awards. Many people make the mistake of filing against several FDCPA violations at once, and then find out it only brings the same $1000 as 1 offense would have.

Also keep in mind that you can also file suit against individual debt collectors too. I am talking about the employees of debt collection companies.

You were right to point out the sloppiness of my rebuttal. 10 lashes with a wet noodle for me.

What I should have said was: the bankruptcy law has much more teeth in this situation than the FDCPA. The FDCPA is limited to $1000 penalty. BK sanctions have no such limit. Naturally, they are only available to the person that has had a discharge and a subsequent collection attempt from a debt collector on a discharged debt.

I'm sorry that I did not make myself clear.

The Fair Debt Collection Practices Act IS Federal Law!

Get some education before spouting jibberish.

Go to FTC.gov to READ the provisions of this FEDERAL LAW.

FDCPA = Federal Law.

As to the response above, yes you can use the FDCPA to go after the collector for the $1000. BUT, National Capitol Management violated a federal law and you are entitled to larger damages. If it were me, I would use all the arrows in my arsenal, not the smallest. JMO. 

The debt collectors continue to try to collect discharged debt because people are reluctant to take the collector to court for violating the discharge injunction. Right now it is a profit center for the CA to collect on discharged debt. But if more people were aware that it is a violation of federal statutes AND if everyone did something about it, the selling of discharged debt portfolios would decrease and eventually stop. By the way, I'm NOT talking about a class action suit. I am saying each debtor that is contacted by a collector on discharged debt needs to take the collector to court if they don't stop their collection efforts instantly. Sanctions against the collector by the judge are much, much larger than $1000.

 This debt is legally time barred. Even if you did not file for bankruptcy, this debt would be legally time barred due to its age.

Send the collection agency a letter via Certified Mail + Return Receipt (do NOT use regular mail) stating:

Per the Fair Debt Collection Practices Act, cease all communications with me about this alleged debt. Receipt of this letter is officially being time stamped via Certified Mail. I will pursue each subsequent phone call from your office with a $1,000 per incident penalty for Fair Debt Collection Practices Act violations.

If your husband received his discharge on this debt then he no longer owes it. If he filed a Ch 7 or 13 and was awarded the discharge, then he does not owe it.

In order to check to see what was included in your petition, check PACER.gov under your husbands name. His record should show up, even if your attorney is no longer in the area. You can download a copy of the entire bankruptcy and a copy of your discharge. It costs about 8 cents per page to do it, but it is worth it.

Contact a consumer attorney in your area that has bankruptcy experience - or a bankruptcy attorney that will handle this case because the collections agency is responsible for your attorney fees if you win. The likelihood of you winning is excellent as once the debt is successfully discharged in bankruptcy, the collector is no longer legally allowed to collect the debt.

The good news is this: not only would the collector be responsible for paying your attorney fees, there is a good chance a bankruptcy judge would sanction the collector and they would have to pay you/your husband a large fee. Not the FDCPA amount, but a much larger fee commiserate with the violation of the discharge injunction.

Don't be afraid to go after this collector, the company and the individual, for a very large fine. They know they are not supposed to collect on discharged debt. Get a very agressive attorney to represent you.