November 21, 2024

Dave Ramsey hates bankruptcy – but don’t listen to him

September 12, 2011 by

If you’ve found yourself in need of financial help, and have searched the internet for information on financial matters, you have undoubtedly come across Dave Ramsey’s website and his financial management products designed to help people get out of debt and manage their finances.  I used to be a big fan of Mr. Ramsey, and most of the information you find on his website is useful.  However, his stubborn disdain for bankruptcy is illogical and borders on being deceptive.

I would like to point out, before I get started on why Dave Ramsey is wrong about bankruptcy, that I am in fact a bankruptcy attorney.  I meet with people on a daily basis that have run out of options for paying down their debt.  They are often in the process of being sued, or having the family home foreclosed, and they live under daily harassment from creditors.  These people need relief now!  On the other hand, I also run into people who only have $10,000 of debt, and simply need to manage their finances appropriately to pay down their debts.  For those people, bankruptcy may not be the right option.  I do not try to sell bankruptcy to people if they don’t need it.  I merely use the appropriate tool when necessary, and there are some situations where bankruptcy is the right tool.

Here is why I think you should disregard Dave Ramsey’s advice on bankruptcy.

1.  Dave Ramsey has a specific counseling service that is targeted at people considering bankruptcy. It strikes me as disingenuous to take the position that bankruptcy is never a good option when you are selling a service that competes with bankruptcy.  It’s hard not to draw the conclusion that he is trying to push his product.

2.  He claims that “bankruptcy is a gut-wrenching, life-changing event that causes lifelong damage.” It is true that the process of filing bankruptcy can be “gut wrenching,” but when compared to the reality of shouldering a large amount of debt for years to come, it is not as gut wrenching as being sued, and having the phone ring for months day in and day out from creditors calling to collect unpaid debts. I’ve seen many people struggle to make interest payments on an enormous amount of debt for years, only to reach retirement age and realize they are out of time and penniless, and they are then forced to file bankruptcy anyway.  That’s gut wrenching!  If they had just admitted to themselves earlier that they needed a fresh start, they could have been saving for retirement instead of paying interest on a debt that they really had no hope of repaying.

3. Dave Ramsey uses his own personal experience of bankruptcy to support his claims of detrimental emotional effects caused by bankruptcy.  However, Dave Ramsey’s bankruptcy experience is very out of the ordinary.

  1. Dave Ramsey was an overleveraged real estate speculator that couldn’t liquidate his assets fast enough when the bank called his loans, leaving him with millions of dollars of debt.  Most people who face the possibility of filing for bankruptcy are not overleveraged real estate speculators, but rather are normal families with both parents working to keep food on the table and pay the bills.  They might have experienced an income reduction due to the loss of a job, the loss of a spouse’s ability to work, or another life changing event such as divorce. (See The Two Income Trap, by Elizabeth Warren.)
  2. Dave Ramsey waited years before filing for bankruptcy.  He allowed himself to be sued, harassed, and frustrated.  If Dave Ramsey had realized the state of his financial situation sooner, and realized that bankruptcy is not a defeat, but a tool created to help people, he could have avoid the anguish he endured.
  3. If Dave Ramsey had not filed for bankruptcy, it is very unlikely that he would have enjoyed the success that he has today.  It was because he filed bankruptcy that he was able to move past his debt and begin his new life debt free.

4. One reason Dave Ramsey has become so successful is that he has explored the spiritual component of debt that people experience. This experience is often times very dark and humbling and can cause emotional distress. And it is precisely because the experience of being a debtor is so dark and serious that I believe that bankruptcy relief is essential for many people. Dave Ramsey encourages people in a spiritual way and helps them get through their dark hours, and they need that. However, it strikes me as abusive to prey on people’s religious beliefs and feelings of guilt to guide them away from a fresh start in bankruptcy. “Pay your debts” is generally good advice, but not for those at rock bottom who have no ability to repay. If it becomes clear that they can’t pay their debts, you have to give them a way out that is achievable, reasonable, prompt, and realistic. They need relief. They have already been struggling for so long. When I meet with potential clients about bankruptcy, the topic of suicidal thoughts comes up surprisingly often. Getting them relief and a fresh start can literally be a life or death issue.  Divorce also comes up a lot.  Getting a debtor relief can also save his or her marriage.  This is serious stuff, with deep spiritual implications.

5. Using Christianity to lead people away from bankruptcy is ironic, because forgiving debts every 7 years comes straight from the Bible. Deuteronomy 15:1 says “at the end of every seven years, you must cancel debts.” This passage was the basis for the practice of debtor’s relief in the ecclesiastical courts of old, which evolved into courts of equity, which were a forebear of modern U.S. Bankruptcy Courts. In my bankruptcy law practice, it has been striking to me how many of the judges, trustees, and attorneys in the bankruptcy legal field are deeply spiritual people.  (Note: Our bankruptcy law says that if you get a bankruptcy discharge, you can’t file bankruptcy again for 8 years.  Until the bankruptcy law changed in 2005, the rule was that you couldn’t file bankruptcy again for 7 years.  If you trace the origin of that 7 year rule, it goes all the way back to Deuteronomy.)

6. It is immoral to borrow if you know you are not going to repay, and it’s also immoral to not repay your debts if you have the money to do so. But it’s not immoral to not pay if you can’t pay. If you borrowed in good faith, with an honest intent to repay, and your plans simply didn’t work out, and you just can’t repay your debts, there is nothing morally wrong with that. Acknowledging facts is moral. Coming to terms with the truth (such as “I am never going to be able to pay off this debt”) is a good thing to do.

7. Dave Ramsey also argues that bankruptcy will harm your credit. That’s hogwash for many reasons.

  • If you are a good candidate for bankruptcy, your credit is already ruined.
  • Also, filing bankruptcy helps your credit recover more quickly because it discharges your debt, thus giving you a better ability to repay any new, post-bankruptcy debt. Creditors like that. Many of my bankruptcy clients have been former realtors, mortgage brokers, and auto salesmen who have been in the business of trying to get people approved for loans.  They consistently tell me that it is much easier to get someone approved for a loan if they filed bankruptcy and waited 2-3 years than if they didn’t file bankruptcy and still have all that old debt and all those late pays on their credit report.
  • Also, you can only file bankruptcy every 8 years, so if you have recently filed bankruptcy, any new lender doesn’t have to worry about you running out and filing bankruptcy. This is  another reason why some lenders SEEK OUT people who have just filed bankruptcy.
  • Also, as Dave Ramsey states so clearly in his books, you are probably better off never borrowing again. So who cares what your credit score is?

8. It is true that the fact that you filed bankruptcy will be on your credit report for 10 years, but most lenders don’t give much weight to events older that 2 -3 years.  They know that many people hit bumps in the road and then get their financial lives bank on track.

I’m not the only person who thinks that Dave Ramsey has missed something important when it comes to bankruptcy. A quick search on the internet lead me to discover several other blogs that discuss the same arguments and opinions I have discussed above.

Filed Under: DCG, Most Popular

Common Myths About Bankruptcy

September 9, 2011 by

1) Filing bankruptcy will destroy my credit forever.

This is probably the biggest myth people believe when they begin the process of filing bankruptcy.  There are several problems with this myth.

1)  A credit report is merely a list of fact reported by financial institutions to track and assess the risk of their lending.

2) Most people who are filing bankruptcy have exhausted all other avenues, and have taken out lots of debt to support themselves.

3) The best way to have good credit is to pay down your debt, and not miss payments.

4) After you file bankruptcy, you will be able to manage your finances more effectively, and thereby more your credit back towards good standing.

In sum, although filing bankruptcy reflects negatively on your credit report, the bankruptcy clears away the other debts to allow you to move forward living a healthy productive financial life, and in the end will allow to rebuild your credit much faster.

2) Filing bankruptcy will force me to lose everything I have

Although every state is different, all states some version of asset protection referred to as exemptions. The exemptions allow protection of certain assets defined by the individual states.

3) I can file bankruptcy on certain debts but not others.

All assets and all debts MUST be included in your bankruptcy filing.  You can repay any debt after you file bankruptcy, however there is no obligation to repay any discharged.

4) Filing bankruptcy is wrong.

The forgiveness of debt is found in many religions.  Bankruptcy exists as a means for people to begin anew.  There is nothing wrong with acknowledging the reality that you can not repay your debts.

5) Everyone will know that I filed.

The petition filed with the bankruptcy court will be available as a public record, and all creditors will receive notice of your filing.  However, not many people browse the bankruptcy filings to find out who has filed, and most of the creditors who receive notices are banks who just file away the notice.  Consider this, there are more people in the U.S. that file for bankruptcy per year than file for divorce.  Now, compare how many people you know who have filed for divorce with then number of people you know who have filed for bankruptcy.

6) Creditors will continue to harass me after I file.

When you file bankruptcy, the automatic stay goes into place.  The automatic stay is an injunction that halts the actions of your creditors.  This includes the action of contacting you.  Once your bankruptcy is finished and you receive you discharge, you are no longer legally responsible to repay the debts owed before bankruptcy.  It is illegal to collect a debt from someone who does not owe it, and therefore, it is illegal for your creditors to contact you to repay the debts discharged in the bankruptcy.

7) My boss will find out and fire me, if I file bankruptcy.

There is a specific provision in the bankruptcy law that prevents discrimination against people who have filed for bankruptcy.  You are more likely to be fired from a job if you are distracted and worried by a large financial burden.  Moreover, it is likely that creditors will begin to contact you at work if you are unable to pay your debts.  Filing bankruptcy is more likely to save your job than cause you to lose your job.  I’ve been doing bankruptcy law a long time, and I’ve never had a single client come back and say, “Hey thanks a lot, I lost my job because of you.”‘ In fact, the usual reaction after filing bankruptcy is, “Wow.  I can’t believe how good it feels to get a fresh start, and I’m surprised at how painless you made that process.  Thanks.”

Filed Under: DCG, Most Popular, Overview

Filing Bankruptcy: More Common Than You Might Think

September 8, 2011 by

About 1.5 million people file bankruptcy per year.  There are only 300 million people in the United States.  The very rich don’t file, and the very poor don’t need to file because they usually never were able to get credit in the first place.  The very young don’t file bankruptcy either.  So, if you look at middle class Americans, and you consider that over a 40 year span, approximately 60 million people have filed or will file, you start to realize just how common bankruptcy is for the average, middle class American.  I bet that if you walk down the street in the average middle class neighborhood in the U.S., inside every third or fourth home would be a person who has filed bankruptcy, or will file bankruptcy in the future, or who has a child or parent or sibling who has filed.  It is very, very common.

Consider this fact – bankruptcy is more common than divorce.  How many people do you know who have been divorced?  You know more people that have filed bankruptcy, even if you are not aware of precisely who filed and when.

Filed Under: DCG, Most Popular

Why Chapter 13’s Rarely Make Sense

September 7, 2011 by

In many states, Chapter 13 Bankruptcy is more common than Chapter 7 Bankruptcy. However, in my bankruptcy practice in Texas, I rarely recommend Chapter 13. In this blog post, I will attempt to explain why. (Below, I discuss other states.)

In any state, it is almost always preferable to file a Chapter 7, if you qualify (see my other post on Qualifying for a Chapter 7), because in a Chapter 7 your debts are discharged within a few months. By contrast, in a Chapter 13 bankruptcy, you must make monthly payments for five years to the Chapter 13 trustee (and the trustee distributes those payments pro-rata to your creditors) and only after 5 years do you get a discharge on whatever amount of debt is still owing at that time.

In Texas, there is no wage garnishment (i.e. no deductions from your paycheck by creditors) and the list of exemptions (i.e. the list of stuff that is exempt from levy by creditors- and thus may be kept by you) is very generous. So, the third option (in addition to 7 and 13) of not filing any form of bankruptcy and doing nothing to respond to creditors attempts to collect from you is not such a bad option. This “do nothing option” is sometimes referred to as “informal bankruptcy.”

There are only two situations in which I commonly recommend that a debtor file a Chapter 13 bankruptcy in Texas (or probably any other state that does not allow wage garnishment):

1. Where the debtor is behind on his house and wants to force the mortgage lender to allow him to catch up on his late payments over time.  However, I rarely think this is a good idea because usually if someone has fallen behind on their mortgage payments, they are going to have a tough time getting caught up and staying caught up.

2. The situation in which the debtor makes too much money to qualify for a Chapter 7 but is not comfortable with the informal bankruptcy option, usually because he or she is a person of delicate temperament and is very bothered by the telephone calls from creditors. (NOTE: see my other post on How Creditors Can Attempt To Collect.)

Note: If you live in a state that allows wage garnishment and you don’t qualify for Chapter 7 (usually because you make too much money), then a Chapter 13 might make sense. A Chapter 13 is going to result in a deduction from your paycheck each month for 5 years (i.e. 60 months). The amount of the deduction is roughly the amount of your income in excess of the means test limit (which is more or less equal to the median income amount in your region). So, you have to do some math. Option A is you just allow the garnishment to occur until the debt is paid off. Let’s say your state allows 25% of your paycheck to be garnished, and let’s say you make $4,000 per month. In that case, the creditor is going to be paid $1,000 per month, if you don’t file a Chapter 13, until they are paid in full. Option B is you file Chapter 13 and the deduction from your paycheck will be the amount of income you earn in excess of the means test amount, but it will only last for 60 months and then the rest of the debt will be discharged.

In order to determine whether Option A or Option B is better, you just have to run the numbers. Try to find a bankruptcy attorney who will give you a free or low cost consultation and walk through the numbers with you.

Filed Under: Advanced Topics, DCG, Most Popular

Reaffirmation Agreements – Do They Make Sense?

September 6, 2011 by

Is “Ride-Through” still an option for Chapter 7 Debtors?

Prior to the bankruptcy law change in 2005, there was a circuit split (i.e. the courts were divided) as to whether debtors had the right to retain their vehicle and continue making regular monthly payments without signing a reaffirmation agreement in places that allowed “retain and pay.” The debtor’s personal obligation on the note was discharged, and the automatic stay prevented repossession of the collateral. If the debtor defaulted after the bankruptcy, he would not be on the hook for any deficiency after repossession.

Now that BAPCPA has made clear the elimination of the option of “retain and pay,” creditors have the ability to repossess a vehicle even if the payments are current, simply by virtue of the debtor filing a bankruptcy and not reaffirming the debt.

But, do creditors actually take advantage of this option?

The short answer seems to be “no.”

According to the American Bankruptcy Institute’s Reaffirmation Agreements in Consumer Bankruptcy Cases by Daniel Austin and Donald Lassman, “the likelihood of a creditor repossessing the collateral of a debtor who is current simply because a bankruptcy has been filed is very remote” (see pg. 31).

Creditors are almost always better off continuing to accept payments from a bankrupt debtor who refuses to reaffirm, as opposed to repossessing the collateral. Repossessed vehicles only net a small percentage of the loan balance after considering attorney fees, repo fees, storage fees, auction fees, and low market value of a vehicle at auction. So, creditors have very little incentive to expend the time and money necessary to compel reaffirmation. And even if the lender is successful in getting the debtor to reaffirm, there is no guarantee they will be able to collect from a judgment-proof debtor who later stops paying.

Nationwide, only 23% of cases ever have reaffirmation agreements filed in them. In Texas, the percentage is higher. At 37%, Texas ranks in the top four states, along with Mississippi, Alabama, and Maine (see Austin and Lassman pg. 61 & 62). It is hard to believe that so many Texas debtors make a fully informed decision to reaffirm. Reaffirmation agreements disproportionately benefit the creditor. The only up-sides to the debtor are (a) an ability to have timely payments reported on the debtor’s credit report, (b) maintaining a positive relationship with the creditor, and (c) eliminating the very small chance of repossession. Thus, the benefit of discharging your personal obligation to pay an entire auto loan usually greatly outweighs the limited benefits of reaffirmation.

From attorney to attorney, there seems to be a large disparity in percentage of reaffirmation agreements filed for clients. Some bankruptcy attorneys file many more reaffirmation agreements on their clients’ behalf than other attorneys. This is further evidence that something is amiss. Clearly, a large number of debtors are reaffirming debts that they do not really have to reaffirm. If you do not reaffirm, and the lender fails to repo while your bankruptcy case is still open, it is arguably too late for them to repossess on the basis of your bankruptcy. In other words, you can argue that they have waived the default you committed by filing bankruptcy, and thus can not lawfully repo the vehicle unless you create a new default by missing a payment or failing to maintain insurance, etc.

Granted, a small calculated risk must be accepted by the debtor when he chooses not to reaffirm. However small the chance may be, there is a possibility that the debtor’s vehicle will be repossessed even if he is current on the payments. Debtors should be cautious in choosing an attorney who will look out for their best interest when dealing with reaffirmation. Debtors should be wary of anyone who is too eager to have them reaffirm.

Making a sound financial decision should take priority over a personal attachment to a car, or a debtor’s strong desire to have their payments reported to the credit bureaus. In practice, the “ride-through” option has not been completely eliminated, and should be fully explained by the debtor’s attorney before a reaffirmation agreement is hastily signed.

Filed Under: DCG, Most Popular, Will They Take My Stuff

Qualifying for a Chapter 7

September 5, 2011 by

When we evaluate a bankruptcy case to determine whether it qualifies for a Chapter 7, we first look at three major questions. We practice in Texas, but all three of the considerations below apply in every state. The only difference outside of Texas is that different exemptions apply, and that may change the answer to #2 a bit.

1. How much unsecured debt (credit card, medical, signature loans, personal lines of credit, etc.) does the debtor have?
It costs over $2,000 to file bankruptcy when you include all of the attorneys fees, filing fees, required classes, credit reports, etc. So, unless a debtor can discharge $10,000 or more, we generally don’t recommend filing bankruptcy.

2. Does the debtor have any non exempt property?
Exempt property is property that is exempt from levy by creditors. In other words, exempt property is property that can not be touched by creditors. Non- exempt property is anything you own that is NOT exempt. Thus, “non-exempt property” is the property that creditors CAN TAKE. If a debtor has a large amount of non exempt property, which will be taken if he files bankruptcy, then it is usually not advisable to file bankruptcy.

The determination of what is exempt and not exempt is complex. The first complexity is that some states are “choice states” and others are not.  Texas, where we practice,  is a choice state that allows you to choose between the state list and the federal list of exemptions.  Some states require you to use the state list, and other states require you to use the federal list.

Let me explain this “choice state” thing a bit further, using Texas as an example.  There is a list of exemptions in the Texas Property Code. And there is another list of exemptions in the Federal Bankruptcy Code. If they get sued in the ordinary course of life, outside of a bankruptcy context, Texans can only exempt the types of property listed in the Texas Property Code exemption list. However, a Texas resident who files bankruptcy gets to choose the Texas list or the Federal list.

Generally speaking, the Texas list is more generous (ex. unlimited homestead protection), but it contains no exemption for cash (which means the debtor has to have empty bank accounts on the filing date or lose his cash to the trustee) and the Texas exemptions also contain no “wild card exemption” (i.e. a kind of exemption that can be applied to anything up to a certain value limit).

The federal list is generally less generous than the Texas list, but contains approximately $10,000 per person of “wild card exemption” which can be applied to any kind of property, including cash.

So, choosing between the Texas list and the federal list is going to depend upon what assets the debtor has.  If he has a big house that is paid off (and thus he has a lot of equity in the house), he has to use Texas exemptions to protect his house.  If he has very little in the way of assets, he will probably use the federal list so that he can use wild card exemption on the cash in his bank account and avoid the hassle of having to schedule his bankruptcy filing for a certain date when he is out of money and before his next paycheck arrives.

3. What is your income level?
In order to file bankruptcy, a debtor must pass the Means Test. Generally speaking, your income can be at most 5-10% or so above the median income for your county and your household size. To give you an idea of what that means, the current Travis County, Texas (where Austin is located) median income for a household size of 1 is about $38,545, for a household size of 2 it is $54,908, for 3 it is $57,053, and for 4 it is $66,400. Keep in mind that if you are married and you and your spouse both work, then both of your incomes must be counted against this household median income level. As with everything to do with bankruptcy, the calculation of the Means Test is complex (certain deductions apply, and certain kinds of income such as Social Security are not counted). It is absolutely essential that you consult with an attorney before making any decisions.

The determination of whether someone qualifies for a Chapter 7 is a complex one and the above three factors are only the first level of analysis that we do.

Filed Under: Most Popular, Qualifying For Bankruptcy

What happens to my secured debts (such as car loan or house loan) when I file bankruptcy?

June 23, 2011 by

Often, when clients come into our office to have a consultation regarding filing bankruptcy there are many questions pertaining to the discharge-ability of certain debts.  Unsecured debts are easy.  They just get discharged in a Chapter 7.  But secured debts are more complicated.  With secured debt, the creditor has the right to take back the collateral (ex. the car in a car loan is collateral, and the house in a house loan is collateral).

The spiel we give our clients to best illustrate the relationship between the debtor, the creditor, and the collateral goes something like this. “When you buy a car, the bank gives you a loan to buy the car and attaches a lien (aka security interest) to the car. The lien allows the bank to recoup some of their money should the loan go into default, and you declare bankruptcy. So, the bank essentially has a hook into you personally to repay the loan, and the bank has a hook into the car also.  When you get a Chapter 7 bankruptcy discharge, the hook into you is snipped and gone, but the bank’s hook into the collateral remains.  This means you are no longer personally liable on the debt, BUT if you want to keep the car or the house, you will have to keep making the payments.

Reaffirmation Agreements (More Info Here) – You will have the option to sign a reaffirmation agreement with your bank and put yourself back on the hook for the debt that was discharged thereby keeping the relationship between the debtor, the creditor, and the collateral. But, why would you want to make yourself liable for a debt that was just discharged?

You wouldn’t, in most instances, need to sign a reaffirmation agreement. If you stopped payment on the debt, the creditor would merely repossess the vehicle, which can be a good thing for the debtor in certain situations (i.e. the debtor can no longer afford the vehicle.)  In our experience however, the creditor usually will not repossess a vehicle merely because the debtor is no longer on the hook for the debt, unless the debtor fails to keep making payments on the loan. This means that in spite of not signing the reaffirmation agreement the debtor will usually be able to keep the collateral by continuing to make payments.  You should discuss this matter with your local bankruptcy attorney.

Filed Under: Most Popular, Will They Take My Stuff

Buying a house after bankruptcy

May 12, 2011 by

My wife and I were planning on buying our first house within the next couple of years, but now it looks like we’re going to have to file bankruptcy soon. Will that prevent us from ever being able to get a house?

Aaron T.
Austin, TX

Assuming that you’re in decent financial shape after filing bankruptcy you should be able to get a house fairly soon. Two years after a person files bankruptcy he or she is eligible for mortgage loans on the same terms as if they had not filed bankruptcy. And even before two years are up, the amount of your down payment and the stability of your income and your credit history after bankruptcy are generally more important than the fact you filed bankruptcy in the past.

Filed Under: Bankruptcy Hazards, Most Popular

Chapter 7 vs. Chapter 13 vs. Chapter 11 bankruptcy

May 12, 2011 by

7, 11, and 13 refer to different parts, called chapters, of the bankruptcy law. Individuals may use Chapter 7 or Chapter 13. Chapter 7 bankruptcy gives you a fresh start by discharging your unsecured debts (such as credit cards and medical bills). It is sometimes called liquidation. Businesses may used Chapter 7 bankruptcy to liquidate or Chapter 11 bankruptcy to reorganize their business and repay their debts over a period of years under a “plan.” Business that want to continue as going concerns must use Chapter 11 bankruptcy.

There is also a very rare beast called “Personal Chapter 11.” This is used where a person has too much debt (the limit is roughly $600,000), or where the person needs a payment plan of longer than 5 years. The maximum payment plan allowed under Chapter 13 is 5 years. Under Chapter 11, there is no limit, but you have to convince the Judge that a longer payment plan makes sense, is likely to be successfully completed by the debtor, doesn’t unduly harm the creditors, etc.

Filed Under: Most Popular, Overview

How a Debt Collector Can Attempt To Collect A Debt

May 12, 2011 by

In this article, I will discuss what creditors may do to collect debts in Texas.  Your state could be a bit different (ex. your state may allow wage garnishment – as discussed below), but this article will still give you an idea of what the process can be like.  You should consult with your local bankruptcy attorney regarding your situation.

In Texas, there is no wage garnishment. That means that a creditor can not deduct any money from your paycheck. In fact, the mere threat of doing so is itself an illegal debt collection practice, and may create a potential lawsuit in favor of the debtor against the creditor.

Because wage garnishment is not an option, creditors in Texas are left with only a few options:

Call incessantly

This is their favorite tactic, and it is very effective. It is surprising how negatively this tactic influences people. It really drives people batty. The best way to deal with this, if you are a debtor, is simply to disconnect your phone line, and use only your cell phone (and change your cell phone number if necessary). If creditors call you at work, you may inform them that it is your work phone number and they may not call you at that number anymore. If they continue to contact you at your work number, you should send them a letter via certified mail, return receipt requested, advising them of your work phone number and asking them not to call you there. If they continue to call you at your work number, that is a debt collection violation, and you may be able to file a lawsuit against the debt collector.

Generally speaking, it is not productive to talk to debt collectors. They are adept at upsetting people. The insults and abusive language that my clients have heard from debt collectors is truly mind-boggling. If you want to get upset, just read the chapter on debt collectors in The Two Income Trap by Elizabeth Warren, or the similar chapter in Financial Peace by Dave Ramsey or watch the documentary film Maxed Out. The best approach with debt collectors is never to speak to them.

Send you letters

Debt collectors can send letters advising you of how much you owe and advising you to pay. This is generally not terribly upsetting to people and is not used very much by creditors because:

i.it is not very effective because it is not very upsetting to the debtors,

ii.all the communications are in writing and thus any illegal debt collection practice is easy to sue on and

iii.the cost of stamps add up

Calling family members or neighbors

Believe it or not, this tactic is arguably legal, so long as they do not disclose what they are calling about. Usually, they will say, “Do you know you neighbor Joe Smith? I have a message for him. Will you ask him to call me?” or “Would you be willing to provide a reference for your daughter Jill Smith? Would you have her call us at this number?” This technique is rarely used. I am not sure why it is not more heavily used. It is effective in upsetting people. My guess is that creditors are afraid of lawsuits for common law unreasonable debt collection, even though its technically not specifically prohibited under the Federal Debt Collection Practices Act or the Texas Debt Collection Practices Act.

Offset against your checking account (if you owe money on a credit card to the same bank that holds your checking account)

It may seem surprising but the issue of whether banks can offset went all the way to the US Supreme Court, and it is now very clear that banks may legally offset from your checking account (i.e. take your money) to repay themselves debts that you owe them. So, don’t keep your money at a bank where you have a credit card or any other kind of debt.

Lawsuit

This technique is rarely undertaken because it is quite expensive. The filing fees, attorneys fees, process serving fees, and other expense can add up very quickly. And creditors know that in Texas, where there is no wage garnishment, they are unlikely to collect anyway. Many debtors become very freighted when they are sued for a debt. Generally speaking, this fear is unwarranted. All the creditor is asking the court to do is sign a piece of paper saying that the debtor owes money to the creditor. There is nothing new about the debtor owing the creditor money. There are plenty of monthly statements, demand letters, and other pieces of paper that say the debtor owes money. However, there is one thing special about a piece of paper signed by a judge. Papers signed by a judge called an “Order or Judgment,” can be used by the creditor to get the local Constable to seize any of debtors non-exempt property. So, if the debtor has a boat or an extra car or an extra piece of real estate other than his homestead, or anything that is non exempt, the creditor may be able to get the constable to seize it, auction it, and give the proceeds to the creditor.

The most common type of non-exempt property seized by creditors is financial accounts (i.e. checking accounts, savings accounts, brokerage accounts, or any other account at a financial institution). Thus, once a Judgment or Order has been signed against a debtor, most debtors choose to live on a cash basis (i.e. not to have a checking account, savings account, brokerage accounts, or account at a financial institution) for fear that they will wake up one day to find their money has been taken from their account.

Other Important Things to Know About Lawsuits on Debt

Once a Judgment or Order has been signed it is good for ten years, and the creditor may renew it for additional ten year periods.

The creditor can obtain an Abstract from the Clerk of the Court that signed the Order or Judgment (an Abstract is just a one or two page summary of the basic terms of the Order or Judgment) and file that Abstract in the county public records to create a lien against any extra (i.e. non-homestead) real estate that the debtor owns in that county.

Even after a Judgment or Order has been signed, it can still be discharged in bankruptcy.  (But, once an Abstract is filed, if a lien attaches to any non-exempt property, that lien may survive bankruptcy.)

In Texas, the statute of limitations on lawsuits regarding debt is four years. That means a creditor only has four years to sue you from the time that you stop making your payments. If a creditor sues you after four years have already elapsed, you can file a response in the lawsuit alleging that the statute of limitations has run because four years have elapsed and you can get the case dismissed. Note that creditors are always free to call you and ask you to pay even after four years. And if you agree to do so, they can keep pursuing you and can keep the money.

Debtors who have been sued for debts often ask whether they should file an Answer or Response of any sort in the lawsuit. If you have a legitimate dispute about the debt, or the amount of the debt, or the calculation of the debt, then it is fine to file an Answer in Response. However, generally speaking, this only delays the inevitable. In most cases the debt is valid, and the creditor will eventually be able to get a judge to sign an Order or Judgment saying so.

You must respond to any formal discovery (such as Interrogatories, Requests for Discovery, Requests for Admissions, Requests For Disclosures, etc.) sent to you by the creditor after you have been sued, and this obligation continues even after you have had an Order or Judgment entered against you. You can be held in contempt by the Judge and even arrested for failing to answer discovery requests. But you can never be jailed in the United States just for failing to pay a credit card or other debt.

Filed Under: Bankruptcy Hazards, Most Popular, Overview
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