and indicates collateral. The burden is on the 3rd party todetermine the nature of the transaction. (intangibles).ii.
2 effects of perfection:1.
W/R/T Real Property: It gives the unsecured an automatic lien onall property the debtor owns in that jurisdiction.2.
W/R/T Personal Property: The clerk must issue a writ that must belevied by the sheriff.[The money then waterfalls: Administrative costs (Court/Sheriff)
Any money left over goes back to the debtor.]
Potential causes of action for outrageous collection practices: invasion of privacy, intentionalinfliction of emotional distress, defamation, assault, battery, interference with contractualrelations, malicious prosecution of criminal or civil proceedings, conversion, fraudii.
To recover in tort, debtor must show creditor‘s conduct is ―extreme‖ or ―outrageous‖
Problem with tort law: creditor has legitimate interest and are thus given a lot of leeway(hard to prevail for plaintiff debtor)
Fair Debt Collection Practices Act
Scope of coverage -
Applies to ―debt collector‖ attempting to collect a ―debt‖
―Debt collector‖ = those in debt collection business
In any business, the principle purpose of which is collection of any debtsb.
Or one who regularly attempts to collect, directly or indirectly, debtsowed/due to anotherc.
Does not apply to creditor who is attempting to collect its own debt2.
Debtor must be a consumer (natural person)b.
Debt must be a consumer debt (i.e. for personal/family/household purposes)c.
Does not apply to corporate/partnership/business debtsii.
Violations of FDCPA1.
third parties and to acquire ―location information‖
Can‘t call consumer‘s place of work if employer proh
t communicate about debt w/
third person without debtor‘s prior consent
Harassment, oppression, or abuse in connection with collection of debt3.
Prohibits use of false, deceptive, or misleading representations or meansa.
at inconvenient time (before 8am, after 9pm
Use of unfair or unconscionable means to collect debt5.
Requires debt collector to give consumer detailed information regarding debta.
Must send written ―validation notice‖ within 5 days of initial com
Give debtor 30 days to dispute and obtain verification6.
Debtor has ability to terminate any further communication if notifies debt collector inwriting that he refuses to pay or that he wishes to stop communicationiii.
―Bona Fide Error‖ Defense
Debt collector protected from liability if:a.
Violation was not intentional, andb.
Happened because of a ―bona fide error‖ notwithstanding maintenance of
procedures reasonably adapted to prevent such an erroriv.
Remedies under FDCPA1.
Civil liability: actual + statutory damages + costs/attorneys fees2.
Administrative enforcement by FTC: injunctive relief or cease & desist
2. Judicial Collection
creditor invokes power of state to collecta.
Postjudment remedies: Enforcement of Money Judgments
arises when 2 or more non-
debtors assert a claim against debtor‘s
scarce assets [
―first in time, first in right‖
first to obtain enforceable claim (lien)usually prevails in priority dispute]