What is unfair debt collection?

 

Debt collection practices are governed by both Federal and Pennsylvania law. Both the federal Fair Debt Collection Practices Act and the Pennsylvania Fair Credit Uniformity Act regulate what communications debt collectors are to have with consumer debtors and with third parties, partly to protect the debtor’s privacy and partly to protect debtor’s from deception and harassment.

Privacy

For example, both the federal and the state law require a debt collector to identify himself or herself when attempting to obtain location information concerning the debtor from third parties and prohibiting the collector from telling the third party that the debtor owes a debt. Also, once the collector knows the debtor is represented by an attorney and knows the name and address of that attorney, the collector may not communicate with any person other the attorney concerning the debt unless the attorney fails to respond to the collector’s communications within a reasonable time.

Harassment

Both the federal and state law restrict the collector to communicating with the debtor between 8 am and 9 pm. Similarly, both laws prohibit the “use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person” and the “use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader”.

Deception

Both the federal and state law prohibit “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

Remedies

While the federal and state laws are quite similar, but not identical, in the conduct they prohibit, there are significant differences in the remedies afforded to the consumer. The federal law allows the consumer debtor to recover damages for actual damages sustained as a result of the creditor’s prohibited practices, plus additional damages up to $1,000 at the discretion of the Court, in addition to costs and reasonable attorney’s fees as determined by the Court. However, the consumer debtor who brings a lawsuit pursuant to the state act may potentially obtain significantly higher damages since conduct prohibited by the state act also constitutes a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law which affords triple damages, as well as costs and attorney fees.

Criminal

Certain collection agency practices constitute a third-degree misdemeanor under Pennsylvania law:

18 Pa.C.S.A. § 7311 Unlawful collection agency practices

If you believe that you have been subjected to unfair debt collection practices, I would be pleased to discuss the situation with you. Your initial consultation will be free of charge.

What is the PACA?

 

The PACA is a federal statute, the Perishable Agricultural Commodities Act. As explained by the United States Department of Agriculture “PACA protects businesses dealing in fresh and frozen fruits and vegetables by establishing and enforcing a code of fair business practices and by helping companies resolve business disputes”.

The law contains trust provisions which put sellers of fresh and frozen fruits and vegetables in a priority status in the event their buyers become insolvent or file for bankruptcy protection. Moreover, pursuant to the PACA the USDA makes available administrative procedures to assist produce suppliers in collecting debts from their buyers. The PACA also provides for jurisdiction in the federal courts for lawsuits for the collection of such debts. Moreover, because of the trust provisions of the PACA, federal courts are authorized to fashion equitable remedies to prevent dissipation of the trust assets. Such remedies may include injunctions to prevent debtors from spending funds or selling other assets and/or the institution of specific claims procedures which allow creditors to present their claims to the court in an orderly and relatively simple manner, rather than every creditor filing a separate lawsuit against the debtor.

I have experience in representing both PACA creditors and PACA debtors in both administrative proceedings before the U.S. Department of Agriculture and in court proceedings in United States District Courts. In fact, I argued an appeal in a PACA case before the United States Court of Appeals for the Third Circuit. Several of the PACA cases in which I have represented parties are described in the following published case reports:

Botman International vs. International Produce Imports
Bear Mountain Orchards vs. Mich Kim

If you have any questions about the PACA, please telephone me at 814-283-5788