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25 October 2012

Second Mortgage Collections

So you have a second mortgage. It’s legitimate debt, but you just can’t afford to pay it and collectors are calling every day. What do you do? Well, if a loan is recourse the only way to be completely rid of the issue is to pay, settle or include the account in bankruptcy. This isn’t […]

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So you have a second mortgage. It’s legitimate debt, but you just can’t afford to pay it and collectors are calling every day. What do you do?

Well, if a loan is recourse the only way to be completely rid of the issue is to pay, settle or include the account in bankruptcy. This isn’t an option for some people, but it doesn’t mean that they enjoy incessant collection calls. Fortunately, there are laws in place that restrict the ways collectors pursue debt.

The Fair Debt Collection Practices Act, or the FDCPA, was written to protect you. During the first act communication, the collector must disclose to you that he is attempting to collect a debt and that any information obtained will be used for that purpose. If the first communication you receive from the collector is written, this disclosure must be clearly displayed in writing. If a collector first contacts you by telephone this disclosure must be made at the beginning of the phone call.

A collector cannot call you at any unusual time or place or at a time known to be inconvenient to you. In general, a collector’s phone calls to you must be made between 8:00am and 9:00pm your local time.

A collector cannot call you at your place of employment if he knows, or has reason to know, that your employer prohibits you from the receiving phone calls.

When contacting a third party the creditor must identify himself and state that he is confirming or correcting the location information of the consumer. A creditor cannot state that the consumer owes any debt, or that the collector is attempting to collect a debt.

Other than contacting a third party for location information, a collector is prohibited from communicating with anyone else about the debt other than the consumer and/or his attorney.

Most importantly, you are entitled to notify the debt collector to stop all further non-written communication with you. The only time the collector may contact you after making this demand is to advise you that they have stopped collection efforts, or to notify you that they are taking specific action against you.

What can you do if they violate the FDCPA?

Generally, the Fair Debt Collection Practices Act is enforced by the Federal Trade Commission. Allegations of violations of the law may be reported to the FTC or your State Attorney General. Complaints to the FTC may be made online at www.ftccomplaintassistant.gov/. You can locate your State’s Attorney General at www.naag.org.

You may also sue the creditor individually for violations. You have a one year from the alleged violation to bring such a lawsuit. If the court determines there was a violation you are entitled to your actual damages sustained as a result of the violation, costs to bring the action, and attorney’s fees. Even if the court decides you did not suffer actual damages, the court can order the collection agency to pay you a statutory fine of $1,000.

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