Most likely, your lawyer didn’t screw up. You see, even after getting a discharge in bankruptcy, it is possible that creditors will STILL harass you. However, before you get mad at your bankruptcy lawyer, understand its probably not his/her fault.
This may come as a surprise, but sometimes creditors simply ignore the fact that a United States Bankruptcy Court issued a discharge of any and all debts owed by the debtor. If you are being harassed over a debt discharged in your bankruptcy, don’t worry. If your current bankruptcy lawyer won’t do anything about it, find one who will.
With few exceptions, the entry of a discharge in a chapter 7, individual chapter 11, or a chapter 13 bankruptcy case operates as a federal court injunction against collection of any and all debts the debtor owed prior to the bankruptcy case being filed. Notice is the absolute key to this injunction. In other words, if the creditor was provided notice that the bankruptcy case was filed, any attempt to collect a discharged debt is a violation federal court injunction punishable by contempt.
But that’s only half of the story because consumers are also protected by The Fair Debt Collection Practices Act (the “FDCPA”). The FDCPA was created by the U.S. Congress to “eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.”
So, what is an “abusive debt collection practice” and how does it apply to discharged debt?
- First, if you have filed a bankruptcy case, you likely retained an attorney, and that attorney can be said to represent you with respect to all your debts. As such, when a debt collector contacts you to collect a debt that was discharged, that debt collector should have known you were represented by an attorney – and thus violates the FDCPA.
- Second, if you have filed a bankruptcy case, and a discharge has been entered, the debt is legally unenforceable. Accordingly, when a debt collector sends a letter or contacts you to collect a debt subject to the discharge injunction, the debt collector necessarily misrepresents the character, nature, and legal status of the debt – and thus violates the FDCPA.
- Third, if you have filed a bankruptcy case, and a discharge has been entered, and the debt collector states certain consequences if you do not pay the debt, the debt collector necessarily makes a threat to take action that the debt collector cannot legally take – and thus violates the FDCPA.
The FDCPA specifically excludes the “original creditor” (i.e. the entity from whom you actually incurred the debt), but there are state laws, like Florida’s Consumer Collection Practices Act (FCCPA), which apply the same restrictions upon the original creditor.
Consumers are entitled to recover statutory damages of up to $1000.00 for violating the FDCPA (and most state laws as well), plus actual damages caused by the violation. If you prevail in a suit filed under the FDCPA, the debt collector (or the original creditor under applicable state law) must pay all attorney’s fees and costs.
Did your bankruptcy attorney “screw up?” Most likely, no. But now, having been the victim of abusive debt collection practices, enforcement of the discharge through federal and state consumer protection statutes can provide recompense for any damages suffered. Former debtors should always remember – once you have filed your bankruptcy case, that will be your bankruptcy case forever, always there to protect you from unscrupulous collection efforts.
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Last modified: June 1, 2011