Creditor Harassment Defense in Miami

Arturo R. Alfonso P.A. represents Miami-Dade individuals and couples who are being pursued by debt collectors, in English and Spanish, as part of the consumer bankruptcy cases the firm files in the U.S. Bankruptcy Court for the Southern District of Florida. This page explains how we handle that work, from the first call to a collector that ignores the court.

What the automatic stay stops, what it does not stop, and how long it lasts are covered in our guide Can filing bankruptcy stop creditor calls and lawsuits? This page does not repeat that. It follows a creditor harassment matter the way we work it.

Step 1: Keeping a Record of Every Contact

Two statutes set the rules. The federal Fair Debt Collection Practices Act (15 U.S.C. section 1692c) governs third-party debt collectors. The Florida Consumer Collection Practices Act, Section 559.72, Florida Statutes, applies to any person collecting a consumer debt, so it reaches the original creditor as well as an agency. Section 559.72 prohibits, among other things, communicating with a debtor between 9 p.m. and 8 a.m. in the debtor’s time zone without prior consent, communicating with the debtor or a family member so often that it can reasonably be expected to harass, and asserting a legal right the collector knows does not exist.

Whether any of that happened to you is a question of evidence, so the first thing we ask for is a record. Keep a log of each call with the date, time, number, and what was said. Save voicemails, texts, letters, and emails, and note any contact with a relative or your employer. We also check whether an agency is registered under Section 559.553, which most consumer collection agencies must be.

Step 2: Moving the Contact to Our Office

Once a collector knows you are represented by an attorney for the debt, and knows or can readily find the attorney’s name and address, both statutes require it to deal with the attorney instead of you. Under Section 559.72(18), the exceptions are that the attorney fails to respond within 30 days, the attorney consents to direct contact, or you start the conversation yourself; Section 1692c(a)(2) is the federal counterpart. When you retain us, we send each collector a letter identifying the firm as your counsel for that debt, and from then on the calls and letters come here.

Federal law adds a tool we use when it fits. Within five days after its first communication, a third-party collector must send a written validation notice, and if you dispute the debt in writing within 30 days of receiving it, the collector must stop collecting until it mails you verification of the debt or a copy of a judgment (15 U.S.C. section 1692g). We decide with you whether to dispute, because it can prompt a creditor’s next step.

Step 3: If You Have Been Sued in Miami-Dade

Many collection suits against individuals are filed in county court, which hears money claims up to $50,000 under Section 34.01(1)(c), Florida Statutes; in the Eleventh Judicial Circuit that is the Miami-Dade County Court. Under Florida Rule of Civil Procedure 1.140(a)(1), a defendant must serve an answer within 20 days after service of the summons and complaint unless a statute sets a different time, and smaller claims proceed under the Florida Small Claims Rules, which begin with a pretrial conference. The summons tells you which applies, so send it to us the day it arrives. A missed deadline can lead to a default judgment, and a judgment is what lets a creditor pursue a wage garnishment.

We read the complaint with you: whether the plaintiff is the original creditor or a debt buyer that must prove it owns the account, whether the balance and fees match your records, and whether the suit was filed in time. For some clients the answer is a defense or a negotiated payment in county court; for many, the suit is one of several debts, and a bankruptcy filing is the step that addresses all of them at once. Our bankruptcy practice page lists what to bring to that conversation.

Step 4: Filing the Case and Notifying Every Creditor

When a bankruptcy petition is filed, 11 U.S.C. section 362(a) stays the continuation of a lawsuit on a pre-filing debt and any act to collect a claim that arose before the case. The court mails notice to the creditors listed in your papers, so the list has to be complete. We list the original creditor, every agency that has contacted you, and the attorney who filed any lawsuit, and we send the case number directly to any collector that is active. If a case of yours was dismissed within the past year, the stay in a new case is shorter or does not arise automatically (section 362(c)(3) and (4)); our guide to dismissal versus discharge explains that rule, and we plan the filing around it.

Step 5: When a Collector Keeps Going

A creditor that knows about the case and keeps calling, writing, or litigating has a problem of its own. Under section 362(k)(1), an individual injured by a willful violation of the stay recovers actual damages, including costs and attorney’s fees, and in appropriate circumstances may recover punitive damages. Our first step is a letter with the case number; if the conduct continues, we raise it with the bankruptcy court. Conduct that violated Section 559.72 can support a civil action under Section 559.77 for actual damages, additional statutory damages of up to $1,000 as the court may allow, court costs, and attorney’s fees, commenced within two years of the violation; the federal act allows up to $1,000 in additional damages for an individual, with a one-year limit (15 U.S.C. section 1692k). We tell you when the records support a claim and what the deadline is.

What to Send Us Before the Consultation

• Your call log and every voicemail, text, letter, and email from each collector, including envelopes.
• Any summons and complaint you have been served with, and the date you received it.
• The most recent statement from each original creditor, so we can match balances to what the collector claims.
• The case number and outcome of any bankruptcy case you filed before.

Our checklist of documents needed to file bankruptcy has the full list for the case itself, and our pages on Chapter 7 in Miami and Chapter 13 in Miami follow each case from the first review to the discharge.

Related Pages

• Bankruptcy Law in Miami
• Can filing bankruptcy stop creditor calls and lawsuits?
• What is the automatic stay in bankruptcy?
• Can bankruptcy stop wage garnishment?
• Chapter 7 Bankruptcy in Miami
• Chapter 13 Bankruptcy in Miami
• What debts are wiped out by bankruptcy?