Creditor harrassment

[annajosie]

Debt Collector,

In Florida, I believe that head of household income is exempt from creditors up to $500 per week. If judgement creditor tries to garnish wages of head of household, the debtor can assert his/her exemptions and stop the garnishment.

I'm not sure about the judgement on property, but even if a judgement creditor does put a lien on property that does not mean they will be able to collect.

Please correct me if I am wrong on this.

 

[TigerD]

Debt Collector,

In Florida, I believe that head of household income is exempt from creditors up to $500 per week. If judgement creditor tries to garnish wages of head of household, the debtor can assert his/her exemptions and stop the garnishment.

Based solely on what you claim - the head of household is able to be garnished. Therefore the advice you gave is incomplete at best and incorrect at worst.

I'm not sure about the judgement on property, but even if a judgement creditor does put a lien on property that does not mean they will be able to collect.

Actually it does - that is the purpose of a lien. A lien clouds the title of a property and it cannot be sold until the lien is paid.


DC

 

[CollectionGuru]

Anna - BK doesn't dismiss liens against property. You may want to study up on that.
Head of household -- so what? You don't specify the state you are referring to and your statement is NOT accurate in all fifty states - actually it isn't accurate in any state that allows garnishment that I know of. Try again.

DC

Actually you may want to read up on that. A chapter 7 bankruptcy discharges all dischargable debt. If the underlying debt that created and substantiates the lien is discharged, the lien goes with it. Trying to enforce the lien would be attempting to collect on a discharged debt, a clear violation of the bankruptcy code.

In a Chapter 13 the trustee is going to decide what (if anything) you get regardless of any lien, judgement, etc.

 

[Chien]

This is a great thread. It careens everywhere. The original subject is long gone. (I thought that I was too.) Actually AJ, on the subject of garnishment, you’re now on the same subject that ultimately resulted in GB leaving us, after it was discussed with Betty and dcatz. Rather than risk that happening, the statute is as follows:

222.11 Exemption of wages from garnishment.—
(1)As used in this section, the term:
(a)Earnings" includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.
(b)Disposable earnings" means that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld.
(c)Head of family" includes any natural person who is providing more than one-half of the support for a child or other dependent.
(2)(a)All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment.
(b)Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
(c)Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
(3)Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.

The FL HoH exemption is a “qualified addition” to the blanket exemptions in TX, SC, NC and PA (which can also be avoided under even more limited circumstances). It’s 100% of disposable income up to and including $500/wk. and 100% of disposable earnings over $500/wk. but subject to written waiver - in other words, possibly all and possibly nothing.

 

[TigerD]

Actually you may want to read up on that. A chapter 7 bankruptcy discharges all dischargable debt. If the underlying debt that created and substantiates the lien is discharged, the lien goes with it. Trying to enforce the lien would be attempting to collect on a discharged debt, a clear violation of the bankruptcy code.

In a Chapter 13 the trustee is going to decide what (if anything) you get regardless of any lien, judgement, etc.

Sure -- you don't get to keep the property and delete the lien. You have to file to have liens removed -- it isn't an automatic. When the debtor's assets are disbursed, the lien holder has priority. Now, I have never claimed to be an attorney and don't typically deal with BKs, but that is my general understanding.

DC

 

[Chien]

You’re right DC. Actually, everybody is right (although AJ may take a bit of a hit without further clarification). It’s just a matter of comparing apples to apples, instead of oranges. In the Ch. 7 example, the unsecured judgment lien holder is likely to be out of luck, while the secured lien holder (eg. mortgage) is probably going to move to avoid the Stay and go right ahead with foreclosure. But AJ looks at FL, which is a special case again. FL requires taking the state exemptions, and those allow(ed?) a complete homestead exemption, if it is claimed (I’m not FL and do as little BK work as I can anymore. I’m not sure if the latest BK revisions changed FL to any extent.) But you have to consider state differences as well.

 

[GoingGrey]

Pretty sure every 5 minutes would qualify

Once an hour qualifies, and, sometimes, even calling more than twice a day can qualify, but it depends.

The once an hour I *KNOW* qualifies as not only harrassment under the FDCPA, but also under criminal code.

Twelve years ago, I had a collection agency calling me every hour, on the hour, from 8:00 in the morning until 9:00 at night, with an automated telephone system. The automated system asked for someone named Scott _____ (not going to list last name here, as I don't know the person) and said something like, "If you are not Scott _____, please hang up."

This went on for three WEEKS, every hour, on the hour, every single day, including Sunday. I contacted the collection agency the very first day and all I got was rude people calling me a liar, saying I was Scott ____ and was just lying that I wasn't, or that I was "covering" for Scott _____. I called them again the next three days, followed by a C&D, which they ignored.

I started hitting *57 after every call, to report the calls as harassment to my phone company. This, by the way, creates a very effective paper-trail, and gets the phone company's lawyers involved.

To make a long story short, CRIMINAL harassment charges were filed, a civil suit was filed, in which I requested the statutory limit of $1000 for each and every call - 252 were documented by the phone company - and I accepted an out-of-court settlement for enough to put a new roof on my house, get my then-nonworking car's transmission replaced, and pay for the prescription drugs I need to stay alive for about a year.

So yes, 5 minutes would qualify

 

[dcatz]

Going Grey – if you’re going to resurrect a month-old thread, I submit that you would help fellow members and subsequent readers by acknowledging distinctions in your response.

Yours is a very nice story, and I congratulate you on your triumphs. However, yours is not the same story as was discussed. You responded to the calls, explained that you were not “Scott” (and, presumably, that the number being called was not and, to your knowledge, never had been Scott’s). You also sent a C&D which was ignored. Not having seen your case, we don’t know whether you got a settlement offer because of the frequency of calls or because calls continued after the C&D. After the C&D, one call was enough to start the wheels turning; every 5 minutes or hours or days is proscribed. If you litigated the case, perhaps you’d like to expand on that.

That is not the same hypothetical (or reality) that is discussed. When you compare apples to oranges and conclude they are the same, collectors and the attorneys who get paid to defend CAs shouldn’t care. I’m not either and I shouldn’t care. But I think that it is a disservice, if you encourage posters to go to court and “strike it rich” as you did, when you don’t make the distinctions that should be made. (On the other hand, maybe some of us should just switch to defense work and not impede misinformation. Everybody likes to win, don’t they? And, until you’re comparing apples to apples, misinformation or misdirection are the terms that apply.)

 

[GoingGrey]

Oops...sorry, I honestly didn't realize the thread was that old! My apologies! And yes, you're right, I shoulda distinguished my post better. By the way, I settled on the harassment charge - the amount of calls. The district attorney filed criminal charges, I filed civil charges, and their lawyer offered me the settlement before first appearance. They took a plea bargain on the criminal charges. I never stepped foot in the courthouse.