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Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

November 2014 Archives

Debt Collection: Your Rights

Dealing with Debt Collectors: When is it Time to Contact a Lawyer?There have been changes in the law in the last few years that protect individuals from unfair or harassing conduct by debt collectors. The most important of these laws is the Fair Debt Collection Practices Act (FDCPA). Under this law, a debt collector may not harass abuse, mislead, lie, or be unfair to you. This law household debts, not commercial obligations.

Who is a Debt Collector? A debt collector is anyone who collects debts on behalf of others. If you owe money to a business or company, that business or company is not considered a debt collector, but if they have a lawyer or collection company working for them, the attorney of collection company is 'debt collector' under the law. The FDCPA only applies to debt collectors and does not apply to creditors who collect their own debts.

Can a Debt Collector Contact Me? A debt collector is permitted to contact you in person, by mail, fax, or telephone. If they contact you, a debt collector must identify themselves and cannot give a false name. They also need to inform you of: (1) the amount of the debt; (2) the creditor to whom it is owed, including the original creditor and their address; and (3) inform you that you have a right to dispute the debt. To dispute the debt, it must be done in writing and within 30 days of the original communication. If it is correctly disputed, the debt collector must stop contacting you until the debt can be verified. Also, if a debt is disputed and the debt collector reports the debt to a credit bureau, they must tell the credit bureau that the debt is disputed so that it is recorded correctly.

You can ask a debt collector to stop contacting you by writing them a letter. Once they receive the letter, they must stop contacting you. They may however, still contact you to inform you they received your letter or to notify you of legal actions being taken against you. If they continue to contact you after receiving your letter for any other reason (i.e. to continue to try and collect the debt) they are breaking the law and you should contact a lawyer. It is important to be aware that sending a letter does not make the debt or the debt collector disappear; the letter only requires them to stop contacting you in an effort to collect the debt. The debt collector can still take you to court to try and collect the debt.

What is a Debt Collector Not Allowed to Do? Non-stop phone calls sound familiar? Surprisingly, a debt collector is not permitted to contact you an excessive amount of times and is also not allowed to contact you at unreasonable times, such as before 8:00am and after 9:00pm.

A debt collector cannot contact you at work if you inform them that your employer does not allow collection calls. Writing the debt collector a letter informing them that your employer doesn’t allow such calls requires that the debt collector stop contacting you at work. If after sending a letter the debt collector continues to call you at work, you should contact a lawyer.

If you haven’t hired a lawyer, a debt collector can contact people you know to find out where you live and work. The debt collector may not contact people you know to get your contact information more than once. The debt collector also cannot contact anyone other than you if they already have your contact information. Even though they are allowed to contact others, the debt collector is prohibited from telling or implying to those people that you owe a debt. Once you have hired a lawyer, the debt collector may not contact anyone other than your lawyer, including yourself.

Extremely Egregious Conduct: You Should Contact a Lawyer Right Away.

Debt collectors may not abuse or harass individuals. They are absolutely prohibited from threatening to harm or damage you or your property (this includes your reputation). If they send you mail they cannot put anything on the outside of the envelope that indicates it is from a debt collector.    They cannot tell you that you have committed a crime by having a debt (having a debt is not a crime) and they cannot threaten to have you arrested or jailed if you don’t pay your debt. They may not use profanity or call you names. They cannot use the phone to annoy you or call you constantly. They also may not publish your name as a debtor to anyone except to a credit bureau and they cannot advertise your debt for sale.

What Can I do to Help a Lawyer Prosecute My Case?

  • Keep all letters and correspondence that you receive from the debt collector, including the envelopes, and keep copies of all correspondence you send to the debt collector. We suggest that if you send the debt collector a letter, send it by certified mail with a return receipt so that you can prove that the collector recieved it.
  • Keep track of all the times the debt collector calls you and what they say when they call. Write down the name of the collection agency and the name of the person you speak with. This is especially important if they contact you after you have sent them a letter asking them to stop. We suggest keeping a notebook where you record the date, time, name of the agency and the individual, the contents of the phone call, and list anyone who was present or may have overheard the call, or even better, keep a recording of the call if your phone has that ability.

If you believe a debt collector has broken the law when dealing with you, contact one of the lawyers in our office to assess your case. You can sue a debt collector in state or federal court within one year from the date the debt collector broke the law, so it is very important to talk to a lawyer right away. If you prevail in court, the FDCPA provides that a person may be able to get up to $1,000 in statutory damages, plus the amount of actual damages they suffer, plus any court costs and  lawyer's fees. Because the law allows you to get lawyer's fees if you win, depending on your case, a lawyer may be willing to take your case even if you don't have money to pay up front.

Criminal Records Expungement

Effective January 1, 2015 Minnesota law on criminal expungement will change making it easier to expunge criminal records and allowing the petitioning party to expunge a broader set of records than previously possible. There are three big changes. First, law enforcement agency records (police, sheriff, BCA…) can now be expunged in addition to the judicial records. This is a big deal primarily as it relates to the Bureau of Criminal Apprehension (BCA) records as the BCA is the primary law enforcement entity's records that are checked by employer's and landlords in background checks. Second, a broader set of defendants can make a petition if they satisfy the requirements in M.S.A. 609A.02. For example, if the defendant got a stay of adjudication and completes the sentence without having another charge for a year they are entitled to an expungement (as opposed to the old law which required that the case be completely resolved in the defendant's favor - i.e. found not guilty or all charges dropped without conviction/plea). Finally, the new law makes it more likely a defendant will be granted an expungement because the new law shifts the burden onto the law enforcement entity to prove by clear and convincing evidence that the disadvantage to public safety outweighs the petitioner’s benefits or else the expungement must be granted by the judge.

Our office is experienced in preparing, filing and successfully arguing expungement petitions and we often will take on the case on a flat fee basis. If you have a conviction in your background, particularly if it is haunting you in your career or housing opportunities, please call us at 952-445-2817 to discuss how the changes in the law can help you.

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