Author Archives: Jorge Pereira, Esq.

About Jorge Pereira, Esq.

I was born in Portugal and raised in Bethlehem after immigrating with his family to the Lehigh Valley at the age of 2. I attended Rutgers University, New Brunswick graduating with B.A. in Political Science and a minor in Psychology. After graduating with honors from Rutgers University, I attended Rutgers-Newark Law School. While at Rutgers-Newark Law School, I was part of Appellate Moot Court, Urban Legal Clinic and the Animal Rights Clinic. Upon graduating Rutgers-Newark Law School Law, I initially practiced at a small boutique law firm in Newark, New Jersey but always maintained a desire to return to his home in the Lehigh Valley. I spent the last eighteen years working in civil litigation and personal injury law firms in the Lehigh Valley. For the last sixteen years, I has worked at an Allentown law firm, The Law of Business, P.C. f/k/a Douglas M. Marinos & Associates, P.C. focusing on business divorce, corporate law, creditor’s rights and general civil litigation. I am a member of the Pennsylvania and New Jersey bars and admitted to practice in the United States District Court of Pennsylvania for the Eastern District and the United States District Court of New Jersey. I have litigated cases throughout the Courts of Common Pleas of Eastern Pennsylvania from Susquehanna County to Philadelphia County and represented both debtors and creditors in the United States Bankruptcy Court for the Eastern and Middle District of Pennsylvania. As counsel for Sovereign Bank, I wrote the appellate brief in the precedent setting decision in the matter of Sovereign Bank v. Schwab, 414 F.3d 450 (3rd Cir. 2005). I am an avid cigar smoker and a founding member, board member and former officer of the Lehigh Valley Cigar Club, a non-profit social club with over 200 members dedicated to protecting and promoting the enjoyment of cigar smoking in the Lehigh Valley.I played Rugby for ten years on the men’s team of the Lehigh Valley Rugby Football Club, becoming a captain of the men’s team, and President of the club. I own a commercial building in the historical district of Main Street, Bethlehem where my business partner and I own a hair salon, Hair Studio Main.

One company is trying to make a profit before Pennsylvania’s medical marijuana program commences.

Back in June of this year, the Pennsylvania Department of Health granted 12 medical marijuana grower/processor permits to the following companies:

Prime Wellness of Pennsylvania (Berks County)
Franklin Labs (Berks)
Pennsylvania Medical Solutions (Lackawanna)
Standard Farms (Luzerne)
Ilera Healthcare (Fulton)
AES Compassionate Care (Franklin)
Terrapin Investment Fund 1 (Clinton)
GTI Pennsylvania (Montour)
AGRiMED Industries of PA (Greene)
PurePenn (Allegheny)
Holistic Farms (Lawrence)
Cresco Yeltrah (Jefferson)

Under Pennsylvania’s Medical Marijuana Act, in order to obtain a grower/processor permit, an applicant had to pay a nonrefundable $10,000 initial application fee and along with $200,000 for the actual permit. The grower/processor also had to prove it had $2 million in capital on hand. Despite the steep price, the health department still received 177 applications for grower/processor permits and generated $1,770,000.00 in nonrefundable application fees.(The Department of state also received 280 applications for a dispensary permit which required payment of a $5,000.00 in non refundable initial application fees, or $1,400,000.)

Of the 177 applicants, only 12 grower/processor permits were issued so the demand was great. Now apparently one of the successful permit applicants is trying to sell the rights to his permit. Franklin Labs, LLC in Reading, Berks County is willing to sell 100% of Franklin Labs including the grower/processor permit for $20 million dollars. Franklin Labs also applied for a special clinical research (CR) license, and only applied for the grow permit as a backup plan. The CR license would allow the company to partner with a teaching hospital to conduct research on medical cannabis. Companies that are granted CR permit will receive permits to open a growing facility as well as six storefront dispensaries for selling oil-based cannabis products.

Under Pennsylvania’s Medical Marijuana Act, the issuance of a permit is a revocable privilege and any permit issued may not be transferred to any other person or location. Apparently, Franklin Labs is trying to circumvent the Act by selling of the whole company lock, stock, and barrel. The Department of Health has issued a statement saying that “no permit may be sold or transferred without approval from the Department of Health” but what about an entire company. Needless to say, this has caused some unsuccessful applicants to requests that Department of Health revoke Franklin Labs’ permit.

There is significant risk in purchasing Franklin Labs and its permit for $20 million dollars. The cost of applying for a permit during Phase II of the applications will still be $210,000.00. While there is no guarantee, the risk is still only the non-refundable $10,000.00 and whatever costs are incurred as part of the application process. While those costs could be significant, they are not likely to near $20 million dollars. Additionally, the Pennsylvania Department of Health could revoke the permit at any time or choose not to re-new it the next year. Despite the risk, Medical Marijuana is big business and it would not surprise me if an existing company in a state such as Colorado or California saw the sale of Franklin Labs as an opportunity to expand into Pennsylvania.

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PA College towns are enforcing rental ordinances targeting student disruptive conduct.

As students return for the fall semester in many Pennsylvania universities and colleges, there are traditional welcome back parties. On campus, campus police regulates parties but off campus parties are less controlled and typically louder and wilder events. After several weekends of rowdy wild off campus parties which disturbed neighbors, led to underage drinking, fighting, arrests and saw a number of students taken to hospitals for alcohol consumption, the City of Bethlehem decided to enforce a city rental ordinance that had been on the books for almost twenty years but rarely used.

The city ordinance essential provides that a code enforcement officer may direct a landlord to evict a tenant if the tenant has been cited with three “disruptive conduct” violations within a year. The ordinance defines “disruptive conduct” as any form of conduct that is a violation of existing city ordinances and/or state law where the Police have issued a Citation and the Citation has been successfully prosecuted or a guilty plea entered before a District Justice.

The ordinance is clearly focused on controlling disruptive student behavior and is limited to regulated rental units occupied by three or more non-blood related persons, but no more than five, under the same lease agreement.

Under the ordinance, each lease agreement must include a provision notifying the tenants of the ordinance and the risk of eviction. Most lease agreements already have some provision requiring a tenant to obey all local and state ordinances but those provisions are general focused on the use of the premises in compliance with city zoning ordinances and not the conduct of the tenant.

Bethlehem’s ordinance is based on a similar ordinance from the City of Bloomsburg with was upheld by the U.S. District Courts for the Middle District Of Pennsylvania. In Bloomsburg Landlords Ass’n v. Town Of Bloomsburg, 912 F. Supp. 790 (M.D. Pa 1995), aff’d 96 F.3d 1431 (3rd Cir. 1996), the landlord association filed a complaint contending that the Bloomsburg Ordinance violated the state and federal constitutional rights of its members. The association alleged: 1) violation of their rights under Article I, Section 10(1) [Article I, Section 10(1) provides that no state shall make any law “impairing the obligation of contracts”] and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution under section 1983, 42 U.S.C. § 1983 and 2) violation of their rights under Article 8, Section 1[All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws] of the Pennsylvania Constitution.

In summary, the U.S. District Court held that: 1) the ordinance was not vague or overly broad; 2) the municipality may constitutionally regulate the number of unrelated individuals who may occupy a single family dwelling so long as as the ordinance was rationally related to a legitimate governmental interest, specifically, preventing disturbing conduct; 3) the ordinance was not a violation of the landlords’ substantive due process guarantees under the 5th and 14th amendment as it was rationally related to a legitimate governmental interest; 4) the ordinance was not a taking in violation of the 5th amendment as the ordinance substantially advances a legitimate state interests and does not deny an owner economically viable use of his land; and 5) that the licensing fee requirement of the ordinance was not a tax and not in violation of Pennsylvania’s constitutional prohibition against non-uniform taxes.

The U.S. District Court also rejected the argument that students were a protected class subject to protection from discrimination under the equal protection clause.

Other Pennsylvania cities and municipalities have similar rental ordinances, including State College, Reading, Kutztown, Allentown and Easton. In Easton, where Lafayette College is located, only two violations for disruptive behavior are required before a landlord is directed to evict the tenant.

Neighbors tired of the late noise and disruptive conduct appreciate the rental ordinances. At the same time, landlords who rent to students on a seasonal basis complain that the ordinances are punitive causing loss of revenues in mid lease.

The effectiveness of the ordinances is debatable. College students are not going to stop throwing parties. However, as long as the ordinances are rationally related to protecting the public and eliminating disruptive conduct, the ordinances will continue to be enforced in Pennsylvania.

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A Pennsylvania tenant’s right to recover a security deposit.

Under Pennsylvania’s Landlord and Tenant Act of 1951, 68 P.S. ‘250.101, et. Seq., a landlord may require a security deposit to be held for tenant caused damages and possible past due rent. See 68 P.S. §250.511 and §250.512. A security deposit is not the same as rent. It is money that actually belongs to the tenant, but is held by the landlord for tenant-caused damages and sometimes past-due rent. Without the agreement of the landlord, a security deposit may not legally be used as the last month’s rent.

Pennsylvania law places a limit on the amount of a security deposit that a landlord may require. Under 68 P.S. §250.511a (a), no landlord may require a sum in excess of two months’ rent to be deposited in escrow for the payment of damages to the leasehold premises and/or default in rent thereof during the first year of any lease. During the second and subsequent years of the lease or during any renewal of the original lease the amount required to be deposited may not exceed one month’s rent. See 68 P.S. §250.511a (b). At the beginning of the second year of a lease the landlord may not keep a security deposit equal to more than one month’s rent and must return any money greater than one month’s rent still being held as a deposit. See 68 P.S. §250.511a (c) After five years the landlord cannot increase a security deposit even if the monthly rent is increased. 68 P.S. §250.511a (d).

Pennsylvania also regulates where residential security deposits must be kept and when interest payments on the security deposits must be made to the tenant. Security deposit monies in excess of $100 and held more than two years must be deposited by the landlord in an approved bank, and the tenant must be notified in writing where the bank and deposit is located. See 68 P.S. §250.511b (a). A landlord is entitled to receive as administrative expenses, a sum equivalent to one per cent per annum upon the security money so deposited, which shall be in lieu of all other administrative and custodial expenses. The balance of the interest paid shall be the money of the tenant making the deposit and will be paid to the tenant annually upon the anniversary date of the commencement of his lease. See 68 P.S. §250.511b (b).

After termination the lease or upon surrender of the lease and acceptance by the landlord of the leasehold premises, a landlord must provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable. Delivery of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant. See 68 P.S. §250.512.

Reasonable wear and tear caused by a tenant’s lawful use of the lead premises is not damages. In 1979, the Pennsylvania Supreme Court officially recognized that an Warranty of Habitability that is implied in every residential lease agreement. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). The Supreme Court decided that landlords who rent property for people to live in must make sure such property is “safe, sanitary and fit for human habitation.” A landlord’s obligations under the Warranty of Habitability cannot be taken from a tenant even if you sign a lease that says you are renting the property “as is” or that you are responsible for all repairs.

The warranty implies that the landlord has placed the rented premises in a livable conditions prior to the occupancy by the tenant; or that he will do so within a reasonable time after the occupancy of the demised residence; that the facilities will remain usable during the entire term of the lease and that the landlord will maintain the demised premises in a condition which will render the premises livable. Any repairs made necessary by reasonable wear and tear are the responsibility of the landlord. Derr v. Cangemi, 66 Pa. D & C 2nd 162 (1974).

A landlord is responsible for all normal wear and tear and must bear that cost as part of the implied Warranty of Habitability whenever he leases a property to a tenant. A landlord can not pass on normal wear and tear expenses to a tenant. Deluca v. Matthews, 2015 Pa. Dist & Cnty. Dec. Lexis 14718.

Assuming that there are valid damages, a landlord must refund the security deposit less the cost of the repairs on the list. If the landlord fails to do this, the tenant cannot be sued for any damages the landlord claims the tenant caused. In addition, if the landlord does not give the tenant this 30-day response, the tenant may sue for double the amount of the security deposit. In order to be able to sue for double the deposit, the tenant must give the landlord written notice of his or her new address once the tenant has moved out. See 68 P.S. §250.512.

Under 68 P.S. §250.512 (e), failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section.

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Pennsylvania consumers protections under the Fair Credit Extension Uniformity Act

In previous blogs, I have discussed the protections provided consumers under the Federal Fair Debt Collection Practices Act (“FDCPA”). The FDCPA is a powerful deterrence to unscrupulous debt collectors and unlawful debt collection practices. The FDCPA is a comprehensive and reticulated statutory scheme, involving clear definitions, precise requirements, and particularized remedies. The validity of the underlying debt is not relevant or an issue under the FDCPA. There is no exception to liability for violating the FDCPA as a result of fraud on the part of the consumer. As long as the underlying obligation is a “debt” as defined b the FDCPA, the method of collections is irrelevant. The validity of the underlying debt is irrelevant as well.

The FDCPA “provides a remedy for consumers who are subjected to abusive, deceptive, or unfair trade collection practices by debt collectors.” A single violation of the Act triggers statutory liability and remedies. Under the FDCPA, a plaintiff may collect statutory damages even if he has suffered no actual damages. The FDCPA is essentially a strict liability statute, where the degree of the defendant’s culpability is relevant only in computing damages, not in determining liability.

Under the FDCPA, consumers are enforcing the FDCPA essentially acting as private attorney generals. Because consumers are acting as private attorney generals, an award of attorney fees is mandatory in an FDCPA case. That means that the FDCPA is essentially a fee shifting statute. If a consumer can demonstrates that the FDCPA has been violated, the consumer may recover actual damages, statutory, costs and attorney’s fees. The longer the lawsuit goes, the more the consumer can recover in attorney’s fees. The threat of an award of attorney’s fees is a very effective deterrent and leads to mean settlements early in litigation.

The FDCPA is not without its limitations. One of the biggest limitations of the FDCPA is that it only applies to debt collectors as defined by the FDCPA. It does not apply to creditors or assignees of the creditor when the assignment has occurred prior to the consumer’s default on the debt obligation. Attorneys acting as debt collectors are also included in the definition of debt collector under the FDCPA.

Typically when bringing a suit under the FDCPA, a consumer will name the debt collectors, and possible law firm and individual attorney hired by the creditor to collect on the debt for any violations of the FDCPA. However the creditor may not be named under the FDCPA.

From the perspective of obtaining the greatest recovery in a lawsuit, a consumer’s best option is to target the creditor as they usually have the deepest pockets. Under Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”), a consumer may also sue the creditor.

The FCEUA is Pennsylvania’s analogue to the FDCPA and applies to both debt collectors and creditors. A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA which in turn constitutes a violation of Pennsylvania’s consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). The FCEUA allows a consumer to sue the original creditor as well as the debt collector for any violations of the FCEUA. The FCEUA protections mirror the FDCPA’s protections.

The FCEUA also has a two year statute of limitations as opposed to the FDCPA’s one year statute of limitations. Finally, as the FCEUA is also a violation of the UTPCPL, a consumer may recover actual damages or statutory damages whichever is greater, costs and reasonable attorney’s fees. Under the UTPCPL, a court may also award treble damages. Again a very effective deterrent which can lead to early settlements.

Any action by a consumer for unlawful debt collection practices must include claims for violations of the FDCPA as well as the FCEUA. It allows the consumer to sue the creditor as well as include older violations.

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HAVE YOU BEEN SUED BY A COMPANY YOU NEVER HEARD OF FOR MONEY YOU BORROWED FROM SOMEONE ELSE?

The average consumer does not realize that the delinquent debt industry is a trillion dollar a year business. Everybody has borrowed money to buy a house, buy a car, for school loans or over charged credit cards. A large number of these loans will end up in default. These troubled loans have a market. There are very large debt buyers who purchase millions of dollars of delinquent debt for pennies on the dollar. The debt buyers purchase the delinquent accounts at a substantial discount and then come after consumers for the full balance. The debt buyers purchase large volume of delinquent accounts often purchasing tens of thousands of accounts at a time. The purchases are often made electronically with only the data being stored and transferred. Hard copy documents such as the original loan agreement often are lost or were never transferred from the original creditor to the debt buyer. A problem for the debt buyers arises when the consumer challenges the claim and the debt buyer can not prove that the consumer entered into the original loan agreement.

Debt buyers do not want their right to collect on obligation challenged by consumers. Debt buyers purchase delinquent debt in large volume aware that many of the accounts will be uncollectable. Debt buyers make a business decision to try and collect as high of a percentage of the delinquent debt accounts as possible. Typically, debt buyers hire debt collectors and/or debt collection attorneys to collect the delinquent debt. The debt collectors or debt collection attorneys will be assigned a large number of accounts for consumers in the area where the debt collectors or attorneys practice. They are paid a percentage of each account they are able to collect on, approximately 15% to 20% percent of whatever they manage to collect on each account. Remember, debt buyers have purchased the delinquent debt accounts for pennies on the dollars so any money they recover is usually profit. If the debt buyers average 50% collection of the delinquent debt on 10% to 20% of the accounts they have purchased but fail to collect on 80% to 90% of the delinquent accounts purchased, the debt buyers will still make a profit. It is in the best interest of debt buyers and the debt collectors to get the money from the consumers as quickly and as cheaply as possible. Any challenge to the claim by the consumer wastes time and costs money which ultimately reduces profit.

For this reason, debt buyers do not want to start a law suit unless they are forced to. It is much more cost affective to send a demand letter threatening legal action in attempt to get the consumer to agree to pay back the debt. This creates an opportunity to negotiate with the debt buyers to reduce the amount of the obligation or to pay it back over time. The debt buyers are more than willing to work out a repayment plan because they have purchased these accounts for pennies on the dollar. For some that is a reasonable option. Hard times may have led to the original default and now when the consumer is in a better position they wish repay their loan or credit obligation.

What many consumers don’t realize is that in this computer electronic transfer age, may of these debt buyers never received the original loan documents and can not prove the original debt or that they actual own the right to collect on the debt. Recently, a New York Times article discussed this problem with regards to privately held student loans.  In summary, the article discusses how debt buyers who own at least 5 billion in troubled private student loans could not prove they had a right to collect. As a result, many consumers where seeing thousand of dollars of their student loans wiped out because the loans were uncollectable.

Credit card debt is very difficult to prove for third party buyers of debt in Pennsylvania. In 2011, the Pennsylvania Superior Court decided the case of Commonwealth Financial Sytems, Inc. v. Larry Smith, No 3455 EDA 2009. In that matter, Mr. Smith obtained a Citibank credit card in 1989 and proceeded to use it for the next thirteen years. By July 2004, Mr. Smith’s account was delinquent account and was sold to Commonwealth who filed suit in March 2006 seeking $5,435.93, plus interest at 23.99% per annum, plus attorney fees at a rate of 20%, and costs. Commonwealth failed to attach many of the original documents and those that were attached the Court found were inadmissible hearsay and did not qualify under the business record exception of the hearsay rule. The question of whether computerized files of an original creditor were admissible as the business records of a successor debt buyer was one of first impression in Pennsylvania. Without the original creditor testifying, the debt buyer could not establish the trustworthiness of the documents, the chain of title, and/or whether an original contract existed.

Any consumer who receives a letter from a debt buyer needs to understand that while a debt buyer may claim it has the right to collect the delinquent debt, they still have the burden of proving that right in court.

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The Supreme Court’s decision in Midland Funding, LLC v. Johnson places too much reliance on Bankruptcy Trustees.

In a previous blog, I was asked to write a blog on the recent May 15, 2017 United States Supreme Court decision in Midland Funding, LLC v. Johnson, docket no. 16-348. In a 5-3 vote the Supreme Court reversed a decision by the United States Court of Appeals for the Eleventh Circuit holding that the filing of a time barred proof of claim in a bankruptcy matter was a violation of the Fair Debt Collection Practices Act (“FDCPA”). In a majority opinion written by Justice Breyer, the Supreme Court held that the filing of a proof of claim that is obviously time barred is not a false, deceptive, misleading unfair or unconscionable debt-collection practice within the meaning of the FDCPA.

The Supreme Court stated that “Congress intended [when it adopted the Bankruptcy Code] to adopt the broadest available definition of ‘claim.’” Therefore, while a claim may be unenforceable because it is time barred or stale, it is still a “claim” under the Bankruptcy Code. The Court further stated that the Bankruptcy code does not say that an ‘unenforceable’ claim is not a ‘claim.’”

The Court further wrote that whether a claim is stale or unenforceable due to the expiration of the limitations period is an affirmative defense to be raised by a debtor. The claim while unenforceable still remains a claim which debtor may raise an affirmative defense to.

The Court’s holding I believe minimizes the appearance of debt validation that a filed a proof of claim may have on the least sophisticated consumer. The FDCPA requires any conduct by a creditor be viewed from the perspective of the least sophisticated consumer. In other words, a court’s standard of review is whether an unsophisticated, uninformed, naïve, trusting, possession below average intelligence consumer would find the filing of a time barred proof of claim in bankruptcy matter misleading or deceptive. Blum v. Fisher & Fisher P.C., 961 F. Supp. 1218 (N.D. I.ll. 1997).

The Court addressed this by stating that in “determin[ing] whether a statement is misleading normally requires consideration of the legal sophistication of its audience” and that the “audience in [consumer] bankruptcy cases includes a trustee … likely to understand [the importance of objecting to an untimely claim].”

In other words, because the matter is in bankruptcy and subject to the review of a trustee, the debtor is receiving the benefit of his/her knowledge and therefore can not be mislead as easily.

The problem with that is a trustee will be reviewing claims only within the context of the bankruptcy matter. Unsecured debts are likely to be discharged and the Trustee may pay little attention to the proof of claim. While unlikely, there is a risk that unsophisticated debtor will believe that the acceptance of time barred proof of claim has rendered the claim valid and subject to collection when the debtor is no longer in bankruptcy. The risk is greater should a debtor’s bankruptcy petition be dismissed without debtor receiving a discharge of his debts.

The Supreme Court acknowledge that several lower courts have found it improper to enforce stale claims directly, largely based on the view that “a consumer might unwittingly repay a time-barred debt.” Justice Breyer suggested that because the consumer initiates the bankruptcy proceeding, the consumer is not likely to pay a stale claim just to avoid going to court. Justice Breyer also pointed out again that the “knowledgeable trustee” is a likely source of objections protecting the consumer.

Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, responded with a dissenting opinion. Justice Sotomayor’s dissent was focused on the large market for consumer debt (“trillions of dollars”), and the third party buyers of debt who buy long-stale “debts for pennies on the dollar.”

Having represented many of those same debt buyers, I am all too familiar with their practices. Third party debt buyers purchase debt on a large scale and then forward hundreds of claims to debt collectors and attorneys. The debt collectors/attorneys are looking to collect on the debt with as little effort as possible and hope a debtor will pay the debt after receiving an initial demand. Under the FDCPA, attorneys are considered debt collectors may be prosecuted for violations. Because of this, attorneys usually will normally not take any action on stale claims. However, given the volume of claims, mistakes occur and attorneys may make demands on time barred claims which debtors may assume are valid and pay.

Similarly Justice Sotomayor recognize that the claims have monetary value only because of the possibility the trustee will forget to object to them. As Sotomayor noted in her dissent, the trustees’ trade association filed an amicus brief in support of the debtor, explaining the impractical burden of interposing objections to the flood of stale claims appearing in consumer bankruptcies in recent years.

Third party buyers of debt factor in to their costs the risks of stale claims being acted on by their debt collectors and attorneys. They know they may be sued under the FDCPA but because of the volume of debt they accept the risk.

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Protection Consumers Have Under Federal and State Law From Creditors and Debt Collectors.

If you have defaulted on your credit card obligations or other debts, you have likely been subjected to calls and letters and from debt collectors, attorneys, and/or creditors threatening legal action if you don’t pay. What many may not realize is that as a debtor you are afforded protection from unfair debt collection practices under federal and state law.

The Fair Debt Collection Practices Act (“FDCPA”) is a federal consumer protection statute that prohibits harassing abusive, deceptive, and/or unfair debt collection practices by debt collectors at any point in the debt collection process, including during pleadings and post judgment conduct. See 15 U.S. Code §1692. The FDCPA protects all consumers from debt collectors attempting to collect debt arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. See 15 U.S. Code §1692a.

A debt collector includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. While creditors are not included in the definition of a debt collector unless the creditor attempts to collect their own debt by using a name that indicates a third party is trying to collect the debt, attorneys are included in the definition of a debt collector under the FDCPA and are subject to a federal law suit should they violate the terms of the FDCPA.

Generally speaking, a debt collector may not communicate with a consumer in connection with the collection of any debt: 1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer (generally, only between the hours of 8:00 a. m and 9:00 p.m.); 2) contact a consumer if represented by an attorney; 3) contact consumer at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication. See 15 U.S. Code §1692c

Additionally, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

A debt collector can not leave a message on an operator, answering machine or third party that indicates that call concerns the collection of a debt. Under the FDCPA, only calls that reach the consumer at home between the hours of 8:00 a. m and 9:00 p.m., that inform the consumer by name who is calling, and the reason for the call are permitted.

Additionally, all calls as well as other communications must also include the required warning and disclosure that the call is to gather information for purposes of debt collection. 15 U.S. Code §1692e(11) requires that debt collectors in all initial written communication to consumers, and if the initial communication is oral, to advise that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.

Under 15 U.S. Code §1692g, each debt collector must offer an initial debt validation statement for the debtor in the first communication with debtor, whether orally or in writing, including in a complaint if it is the first communication with the debtor. Under the statute, specific language is required and any failure to use that specific language as well as provide the name of the creditor and the amount of debt is a violation of the FDCPA.

Under 15 U.S. Code §1692d, a debt collector may 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: 1) the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person; 2) the use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader; and 3) causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

Under 15 U.S. Code §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to: 1) the false representation of the character, amount, or legal status of any debt; 2) the false representation or implication that any individual is an attorney or that any communication is from an attorney; 3) the threat to take any action that cannot legally be taken or that is not intended to be taken.

Under 15 U.S. Code §1692f, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt, including, but not limited to the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The FDCPA provide that a consumer may recover in a civil law suit actual damages, statutory damages of $1,000.00 and costs of the action together with reasonable attorney’s fees. The FDCPA is a fee shifting statute allowing the consumer to recover his attorney’s fees in a law suit for violation of the FDCPA. Finally, all suits must be commenced within one year of the violation.

Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”) is Pennsylvania’s analogue to the FDCPA and essentially mirrors the FDCPA in its prohibitions. See 73 P.S.§ 2270.1 et seq, However, the FCEUA applies to creditors and debt collectors alike and allows for law suits against the actual creditors as well as the debt collectors unlike the FDCPA. The FCEUA does not allow for lawsuits against attorneys collecting debts for other parties.

A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA. See 73 P.S. §2270.4. Under the FECUA, 73 P.S. §2270.5, if a creditor engages in an unfair or deceptive debt collection act or practice under this act, it shall constitute a violation of The Unfair Trade Practices And Consumer Protection Law (“UTPCPL”).  73 P.S. §201-1 et. seq.  The UTPCPL allows a consumer to recover actual damages, as a result of his use methods, act or practice declared unlawful under the FCEUA, statutory damages, treble the actual damages (at the court’s discretion), together with costs and reasonable attorney fees. See. 73 P.S. §201.9-2. All actions under the FCEUA must be commenced within two years.

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