getmeouttahere

Please tell me I can sue these a holes!

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If a collection attorney knows that you are represented by an attorney involving a bankruptcy case, can that collection attorney send you letters, without your attorney's knowledge, to try and settle a debt? I'd love to sue this particular CA for violating the FDCPA. Our attorney said there's no law regarding this, but the law states differently..."if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer"

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I would say that an FDCPA claim definitely accrued by the issuance of the collection letter.

Are you certain they received effective notice of the filing (see 11 USC 342)? If so, then bring a motion to impose sanctions for violation of the automatic stay (see 11 362(a)(6)).

http://www.doney.net/bkcode/11usc0362.htm#362(a)

http://www.doney.net/bkcode/11usc0342.htm

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This is definitely a violation of the FDCPA and also US bankruptcy court regulations. I'd keep you BK lawyer and hire another one to handle the FDCPA problems.

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Actually, if they knew of the BK and sent the letter anyways, I would go for BK sanctions. I saw something somewhere that the FDCPA is suspended if there is a BK case open because the BK automatic stay takes presedence (don't worry, as you will see below this will work to your advantage). The only time the FDCPA can be used is before filing for BK or after the case is closed.

In any case, BK sanctions is the better route to go because the FDCPA has a limitation of $1000 plus actual damages. There is no such limitation on the BK Automatic Stay Violation rules and as such, the awards can be much much higher as BK judges take a violation of the Automatic Stay very seriously.

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In the past few years, I have posted quite a few extensive threads about BK sanctions. They should be searchable. In a nutshell, the sanction can be anything from an injunction to actual money damages to punitive damages, depending on the situation.

I have only seen punitive damages when the violations were repetitive and/or egregious. An example of this would be notifying a creditor repeatedly of the filing and having them continue to call you, or having them repo your car after a filing and have them fail to return your vehicle.

Nevertheless, I suggest you pursue it. You could get some sort of payout and ordinarily at a minimum the cost of the attorney's fee for the motion. And it'll help police these companies that tend to be sloppy about ceasing collection efforts upon BK filing.

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Well, he hasn't actually filed BK yet. He retained an attorney a couple of months ago. His attorney answered a summons for a lawsuit from this particular CA and also informed the CA that he was being represented by an attorney.

I think this would be more of an FDCPA issue since he hasn't actually filed yet.

I really appreciate your help!

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Agreed. At least make the argument in your complaint and let them answer it. FDCPA is chock full of traps like this for creditors. Take advantage of it.

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