TELEPHONE CONSUMER PROTECTION ACT (TCPA)
AS IT APPLIES TO TEXAS CONSUMERS WHO FILED BANKRUPTCY
Unfortunately, creditors don't always obey the law and stop collection efforts after a bankruptcy is filed. This is particularly a problem for those who have filed bankruptcy and surrender real estate. As consumer lawyers, it's our job to make sure your creditors respect the bankruptcy discharge and the Telephone Consumer Protection Act (TCPA).
Over the years, we have observed that mortgage lenders and servicers often continue to call debtors who have surrendered and vacated real estate in their bankruptcy, offering them modifications, extensions or other alternatives to foreclosure. These calls are probably a discharge violation and may be violations of the Telephone Consumer Protection Act (TCPA).
The TCPA prohibits making "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or artificial or prerecorded voice" to "any telephone number assigned to a ... cellular telephone service." Once a debt is discharged, any consent that may have been given is most likely terminated. So, calls to consumers about discharged debts are usually a violation of the TCPA as well as the bankruptcy discharge injunction.
The Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq, (the "TCPA"), prohibits making "any call (other than a call made for emergency purposes or made with the prior express of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227 (b)(1)(A)(iii).
Congress delegated authority to the Federal Communications Commission (FCC) to promulgate implementing regulations. 47 U.S.C. §227 (b)(2). In relevant part, the FCC's implementing regulations provide: "No person . . . may (I) initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) To any telephone number assigned to a . . . cellular telephone service."
The TCPA creates a private federal cause of action. 47 U.S.C. §227(b)(3). A plaintiff who prevails in an action for damages under the TCPA is entitled to the greater of actual damages or $500 for each violation, plus additional damages up to the greater of $1,500 or treble actual damages for each violation committed willfully or knowingly. 47 U.S.C. §227 (b)(3).
The Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq, (the "TCPA"), prohibits making "any call (other than a call made for emergency purposes or made with the prior express of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227 (b)(1)(A)(iii).
Congress delegated authority to the Federal Communications Commission (FCC) to promulgate implementing regulations. 47 U.S.C. §227 (b)(2). In relevant part, the FCC's implementing regulations provide: "No person . . . may (I) initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) To any telephone number assigned to a . . . cellular telephone service."
The TCPA creates a private federal cause of action. 47 U.S.C. §227(b)(3). A plaintiff who prevails in an action for damages under the TCPA is entitled to the greater of actual damages or $500 for each violation, plus additional damages up to the greater of $1,500 or treble actual damages for each violation committed willfully or knowingly. 47 U.S.C. §227 (b)(3).
One of the reasons you filed bankruptcy in the first place was to obtain a fresh start. When you continue to get phone calls after a debt has been discharged, you are denied the full benefits of the bankruptcy discharge.
Please contact our office to arrange your free Discharge Compliance Review which will include a review or your credit reports as well any correspondence, telephone calls, emails, faxes, and text messages you might have received from creditors or collection agencies trying to collect a discharged debt. It is well worth the time to find out whether or not your credit report is accurate or if creditors have been illegally accessing your credit reports. If your creditors are failing to report the bankruptcy discharge properly, we can help you and if they are still trying to collect their debt, we take action to force them to honor your discharge. Best of all, your creditors will have to pay our attorneys fees for solving these problems and may have to pay you damages if they have violated the law.
