Addressing Potential Creditor Abuses in Bankruptcy: FDCPA vs. Bankruptcy Code
The intersection of the Bankruptcy Code and the FDCPA is explored, focusing on issues such as relief seeking, preemption, and creditor obligations. With insights from legal cases and court decisions, the complexities of debtor rights within bankruptcy proceedings and debt collection practices are analyzed. Jurisdiction discrepancies and key considerations for navigating creditor abuses are highlighted within the legal framework.
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Presentation Transcript
FDCPA v. Bankruptcy Code: FDCPA v. Bankruptcy Code: WHICH RULES? WHICH RULES? Presented by: Mayur Patel Ginsburg Patel, P.C. Houston Randy Rios Hughes Watters Askanase, LLP Houston SOUTHERN DISTRICT OF TEXAS BANKRUPTCY BENCH BAR CONFERENCE Omni Corpus Christi Hotel Bayfront Tower 900 North Shoreline Blvd. Corpus Christi, Texas 78401 April 20-22, 2016
Addressing Potential Creditor Abuses The Bankruptcy Code Automatic Stay (11 U.S.C. 362) Discharge Injunction (11 U.S.C. 524) Sanctions (11 U.S.C. 105) Claims process (11 U.S.C. 502, Rule 3001 and 3002.1) Federal Debt Collection Practices ACT (FDCPA) Improper communication (15 U.S.C. 1692c) Harassment or abuse (15 U.S.C. 1692d) False or misleading representations (15 U.S.C. 1692e) Unfair practices (15 U.S.C. 1692f) The issue: can a debtor seek relief under the Bankruptcy Code and the FDCPA?
The Lay of the Land Is the FDCPA preempted by the Bankruptcy Code? Pending cases Discharged cases Circuits split No preemption: 2nd, 3rd, 11th Preemption: 4th, 8th, 9th It depends: 7th Bankruptcy Courts all over the place
The Southern District of Texas NO PREEMPTION: Trevino v. HSBC Mortgage Servs., Inc. (In re Trevino), 525 B.R. 110 (2015): Because the Bankruptcy Code and the FDCPA do not conflict with regards to the filing of a proof of claim, relief under the FDCPA is not preempted by the Code.
