Kentucky Bankruptcy Law

Counsel with Care

When a violation of the Consumer Protection Act lands you in debt

First, I want to give a shout-out to my law school compatriot and all ’round helpful attorney, Ben Carter, for his pointers in the consumer protection arena. I recently was approached by a young lady for help with a particular debt. Other than this one liability, she had no debt to speak of and so bankruptcy really would not be the most cost-effective way of dealing with the issue. Bankruptcy will definitely extinguish a debt that arose out of bad practices by the creditor, so if the particular debt is high enough or if there are several issues that could be wrapped up at one time, then bankruptcy would be a route to consider. But when the only issue is a liability that came about by unlawful practices of the creditor, then one can consider another line of attack – pursuing an action under the Kentucky Consumer Protection Act (KCPA).

In my client’s situation, she was approached by a home security company. I do not want to go into the details at the moment because this matter is still pending, but I will say the salesperson for the home security company engaged in some bait-and-switch tactics and made some representations that she relied upon that turned out to be false. She quickly decided to cancel the contract but, as a result of one of those misrepresentations and deceptive acts, she missed the window in which the company (actually it turned out there were two separate companies which made it even harder to know what was what) claimed they would have honored the cancellation. Further, they claimed the damages for stopping the contract were the exact same amount as it would cost for the home monitoring service over three years. I did some research online via the Google (if I call it “the Google” it just sounds more impressive don’t you think?). Apparently complaints of this nature against these two cohort companies is quite widespread.

Now, the really nice thing about pursuing a company for a violation of the KCPA is where suit can be brought. The ordinary rule of procedure in a civil lawsuit is that the suit must be brought where the defendant is located. However, if a person buys stuff or services mainly for personal use, and is subjected to “unfair, false or deceptive acts or practices” (KRS Sect. 367.170) then they can bring suit in their own county’s Circuit Court (KRS Sect 367.220). This is incredibly helpful when, as in this young lady’s situation, both companies are non-Kentucky based businesses. If she had to sue them on their home turf, the cost would be astronomical.

That same statute, KRS 367.220, goes on to make sure judges know that they can award attorney fees to the consumer if they prevail and they can even award punitive damages against the offender. However, to position oneself the best way possible to make either of those things happen, the consumer must document extensive efforts to settle the matter along the way.

Given the generous jurisdiction, venue, and damages provisions of the KCPA, one would think more suits would be brought. This is where the economics of fraud come into play. Businesses that engage in fraudulent practices typically do not go after huge amounts of money. I venture to say that, other than that deposed prince of Nigeria, nearly all businesses who are fraudulent seek to acquire well under $2,000.00 from the consumer. That means that someone seeking to redress the wrong through court could end up spending about as much on a lawyer as the debt itself. And, as with all litigation, there is no certainty of prevailing  nor of being awarded attorney fees. Attorneys rarely will pursue one of these cases without some assurance that their time will be compensated and so the “cost-benefit analysis” often favors the dishonorable business. And, there is a dearth of low-income or pro bono legal advocacy programs because our society does not wish to fund them.

There is one more avenue a consumer can take if they cannot find a lawyer. Although there is absolutely no guarantee it would right their own personal injury, they can report the matter to the Attorney General’s Office and that office may investigate the businesses practices. Even if they do investigate and pursue an action, they would not be representing you individually. Furthermore, they state several steps to take first on their website.

All this considered makes bankruptcy a more attractive option to get out from under a debt arising from fraudulent or unfair business practices. When bankruptcy does not make sense, though, it is good to know that other avenues are available.

December 16, 2013 Posted by | Alternate Debt Relief, attorney fees, Bankruptcy, Consumer Protection, Discharge | , , , , , , , , , | 2 Comments

Post-Holiday Pitfalls for Bankruptcy part 2

My prior post gave some tips for dealing with purchase money security interests, but this one today goes a totally different direction. We leave behind bankruptcy code section 522 and turn to 11 USC Sect. 523(a)(2)(A)-(C). These provisions all boil down to the non-discharge of fraudulent debts. Automatically we think of the person who goes on a spending spree for Christmas knowing they would be filing bankruptcy early in the new year. Definitely, they are running a risk here, but the reach of this provision is much further than that and so you will want to take a closer look.

That last provision, 523(a)(2)(C), gives some specific circumstances that constitute fraud and they have NO intent element. If you used a single credit card to buy Christmas gifts aggregating more that $500.00 in the 90 days before filing, you are presumed to have incurred that debt fraudulently. If you switched up and ran up more than $500 each on three different cards for Christmas gifts 90 days before filing bankruptcy, well all three of those debts are presumed to be non-discharged due to fraud. Furthermore, if you took out cash advances aggregating more than$750 from a single creditor in the 70 days prior to filing, that is also presumed to be fraudulent.

These debts are not automatically excluded from discharge, but the creditor has the right to object to their discharge. If the bare facts explained above are present, then the burden becomes yours to prove there was no fraud. Since intent is not part of the equation, this would be a hard thing to do.

 

January 4, 2013 Posted by | Bankruptcy, Chapter 13, Chapter 7, Fraud, Pre-filing planning | , , , , , , | Leave a comment

Another perspective on post-holiday bankruptcy blues

The Bankruptcy Law Network addressed the same issue of using credit to buy Christas gifts in this post that I addressed here. If you incur a debt with no intention of repaying it, that particular debt may not be discharged in a Chapter 7. This is a good reason to NOT pay your bankruptcy attorney with a credit card.

December 30, 2009 Posted by | Uncategorized | , , , , , | Leave a comment