Congress adopted the Fair Debt Collections Practices Act (FDCPA) among growing concerns of abusive, deceptive, and unfair debt collection practices by debt collectors.  The most important thing to remember about the Act is that it only applies to third party debt collectors.  This means that the provisions and protections of the Act do not apply to the actual lender or the bank itself, but it does apply to collection agencies and collection attorneys who are contacting you on behalf of the bank or primary lender.  Among other protections, the Act provides that a debt collector may not communicate with a consumer:

1. Before 8:00am or after 9:00 PM.
2. If the debt collector knows that the consumer is represented by an attorney.
3. At the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.

The act also forbids harassment, abuse, and false or misleading statements.   A debt collector also cannot use obscene language or threaten you with violence or criminal prosecution.   You cannot go to jail for not paying a debt.

One of the strongest provisions of the FDCPA is found under section 1692(c).  Pursuant to this section if a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector needs to cease communication with that debtor or face penalties.   Also, once you inform a debt collector that you are represented by an attorney, he cannot communicate with you any further.

Please keep in mind that although the FDCPA limits the collection behavior of debt collectors, the original creditor or debt collector will still be able to pursue a judgment in a court of law.  At that point your only remedy is to contest the suit or to try to have the debt discharged pursuant to Bankruptcy Law.

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

After Ms. McCready’s hearing in Arkansas this week, WINK News Now returned to Martin Law Firm to further explain the legal implications involved with this case.  Attorney Steven Martin explained that Florida, which is the “home state,” would likely ultimately determine this matter.  However, the Arkansas Judge might delay the return of the child to Florida to investigate, if for example, there were allegations of abuse.

Ultimately this entire ordeal will likely be considered in determining the final custody arrangement within the entire scheme of the best interests of the child.  Attorney Martin speculates that while Ms. McCready may have won a small battle but that ultimately her tactics will not sway the case in her favor.

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website: http://www.winknews.com/Local-Florida/2011-12-07/Experts-say-Mindy-McCready-will-have-trouble-getting-custody

Steven E. Martin’s practice focuses on family law, civil litigation, business planning, estate planning and real property law. Mr. Martin is a Past President of the Cape Coral Bar Association and is an active member of the Lee County Bar Association. Mr. Martin is a member of the Florida Bar’s Judicial Administration and Evaluation Committee, and the Calusa Chapter of the American Inns of Court. Mr. Martin is admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida. Mr. Martin practices in Lee County Florida in Cape Coral and Fort Myers, Florida and in Collier County Florida in Naples.