San Jose Bankruptcy & Fair Debt Collection Practices Act Lawyer Blog

Lenny Dysktra, New York Mets baseball player, and winner of the World Series back in 1986, recently filed bankruptcy* in Los Angeles, California. Famous people filing bankruptcy is nothing new.

* You can learn more about filing bankruptcy in San Jose at: www.e-bankruptcy.com

Athletes

Lenny Dysktra joins a growing list of other athletes who have sought a fresh start by filing bankruptcy, including: legendary football player Johnny Unitas; Boxers Mike Tyson, Leon Spinks and Joe Lewis; Professional tennis player Bjorn Borg; Olympic gold medalist Dorothy Hamill; and former Oakland A's baseball player, Jose Canseco.

It just goes to show a struggling economy affects all of us.

Many other talented people have filed bankruptcy in order to get a fresh start.

Musicians

Famous musicians that have filed for bankruptcy include Elton John, Tom Petty, David Cross, Toni Braxton, Meat Loaf, M.C Hammer (from Oakland, CA), Ted Nugent, Jerry Lee Lewis, Chaka Khan, Marvin Gaye, Andy Gibb and Vince Neil (of the rock band Motley Crue).

Television and Hollywood Celebrities

Several well known television and Hollywood celebrities have also obtained a fresh start by taking advantage of bankruptcy protection, including talk show host Larry King, and actors Kim Basinger, Mickey Rooney, Burt Reynolds, Gary Coleman, Lynn Redgrave, Margot Kidman and Lorraine Bracco. It just goes to show the California movie industry is not immune from tough financial times.

Politicians

Ulysess S. Grant (our 18th president) and William McKinley (our 25th president) both filed bankruptcy. It is obvious that for these great individuals bankruptcy was a new beginning, not a dreadful end, as some mistakenly believe.

Authors and Artists

Samuel Clemens, better known as Mark Twain, is just one of the famous authors on this list. Others include the creator of the Wizard of Oz, Frank Baum, Oscar Wilde, and even Walt Disney.

Businessmen

The list of famous people who filed bankruptcy is not limited to those without business or management skills. Actually, its quite the contrary. The list of famous business people who filed bankruptcy includes: Donald Trump, Henry Ford, H.J. Heinz, and Milton Hershey- the founder of Hershey's chocolate.
Now of course you want to avoid the problem Lenny Dykstra ran into and be as truthful as possible in filing your bankruptcy petition, and your financial dealings leading up to the bankruptcy filing.

Unfortunately for Lenny Dykstra, he was charged with a 13-count federal indictment on May 6, 2011, including one count each of bankruptcy fraud and obstruction of justice, four counts each of concealing property from the bankruptcy estate and making false declarations to the Bankruptcy Court, and three counts of embezzlement from the bankruptcy estate.

Federal prosecutors allege that after Dysktra filed for bankruptcy protection in July 2009, he looted his Sherwood Estates mansion, lied about who stripped the home and denied receiving money for having sold items that were owned by the Bankruptcy Estate.

It has been reported that an attorney hired by the bankruptcy trustee estimates that Dykstra stole and destroyed more than $400,000 worth of property in the estate.

All of the charges in the indictment carry a statutory maximum penalty of five years in federal prison, except for obstruction of justice, which carries a potential sentence of up to 20 years in prison. If he is convicted of all 13 counts in the indictment, Dykstra would face a maximum possible penalty of 80 years in prison, according to news reports.

Dykstra's bankruptcy case is still pending in U.S. Bankruptcy Court in the Los Angeles suburb of Woodland Hills, California.

Debt collectors using high-tech autodialers had better be sure to abide by the TCPA, as well as the FDCPA (Fair Debt Collection Practices Act).

A federal judge in Illinois ruled that the owner of a cell phone can sue a debt collector for placing autodialer calls with pre-recorded messages, even if the owner of the cell phone was not the person the debt collector intended to call. The case is Loidy Tang v. Siegel & Associates, 2011 U.S. Dist. LEXIS 63298 (N.D. Ill 2011).

In the case a consumer alleged that a debt collector had used an automatic telephone dialing system (also known as a robodialer or predictive dialer) to place numerous calls, and leave automated messages, in an attempt to collect a debt. The consumer alleged the calls violated the TCPA (The TCPA is also known as the Telephone Consumer Protection Act- a federal law that protects people from certain (usually unwanted) telephone calls. The messages the debt collector left stated:

Message for Kimberly Nelson. If you are not Kimberly Nelson, please hang up or disconnect now. If you are Kimberly Nelson, please continue to listen to this message. You should not listen to this message in public as this pertains to personal and private information. There will now be a three second pause in this message to allow you to listen in private.

The judge ruled that the debt collector intended the call the cell phone and thus the owner of the cell phone had a right to sue, even if that person is not Kimberly Nelson. Thus, just as in the case we wrote about last week on this blog, Courts have been interpreting the TCPA broadly to carry out the intent of Congress to protect consumers. State of Maryland v. Universal Elections. Indeed, California courts have also applied the TCPA broadly, and hold that it applies to debt collectors. Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (S.D. Cal. Apr. 13, 2011).

The Loidy Tang Court also went on say the consumer was allowed to sue the debt collector for placing a telephone call and failing to meaningfully disclose its identity in violation of the FDCPA (generally, a debt collector is required to state that it is a debt collector, and cannot disguise the nature of the call). The Court relied on two other recent cases that ruled the same way. Hutton v. C.B. Accounts, Inc., 2010 WL 3021904, at *3 (C.D. Ill. Aug. 3, 2010); Edwards v. Niagra Credit Solutions, Inc., 586 F. Supp. 2d 1346, 1360 (N.D. GA 2008).

Anyone how has ever been bothered by the annoying telephone calls during dinner, or some other peaceful time you spend at home can appreciate the saying that a man's home is his castle. Yet, it seems there are still people who try to take advantage of knowing you will be at home at a certain time and try to take away your serenity (the usual culprits are debt collectors and telemarketers).

Those of us in California, and especially those who live near San Jose or Silicon Valley, are also very familiar with these new hi-tech automated dialers, or robo-dialers, that are programmed to call us just when we are about to take our next bite of a California roll. There has been a battle brewing over whether these calls are a nuisance or a necessity, whether they are something we must live with, or completely get rid of.

On May 25, 2011, a federal district judge in Maryland refused to throw out a case brought by the State of Maryland against a defendant that hired a company by the name of robodial.org. No kidding, that's their real name. Robodial's job was to dial 112,000 homes and deliver a robotic message. State of Maryland v. Universal Elections.

According to the Court's written opinion:

"The message did not identify the caller or disclose on whose behalf the call was being made. (Id. ¶15.) The message also did not disclose the address or phone number of the person or entity that initiated the call. (Id.) On November 2, 2010, the prerecorded voice message was broadcast to the 112,000 phone numbers on the list uploaded by the defendants. (Id.) The State of Maryland alleges that the defendants "omitted the identifying information required by the TCPA in order to disguise the purpose of their calls." (Id. ¶16."

The TCPA is also known as the Telephone Consumer Protection Act- a federal law that protects people from certain (usually unwanted) telephone calls. The Court went back to language from when Congress created the TCPA and said:

"Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.")." Citing, Telephone Consumer Protection Act of 1991, Pub. L. 102-243 § 2(10).

The Defendant, robodial.org, tried to argue that it was placing telephone calls for political purposes and thus the calls didn't serve a commercial purpose, and shouldn't be prohibited by the TCPA. The Court held that robodial.org could indeed be liable under the TCPA.

Thus, just like the collection agencies that have tried to narrow the focus of the TCPA, and say it doesn't apply to them (see below), the TCPA is being applied broadly, for the protection of the general public. While the TCPA has different aspects, and different rules as to when an auto-dialer can be used to call a residential phone or cell phone, the bottom line is this- Congress and the Courts agree these calls may be a nuisance and invasion of privacy.

Days later, on June 5, 2011, in a Fair Debt Collection Practices Act (FDCPA) case another federal judge in San Diego ruled debt collectors who make auto-dialed or prerecorded calls to a wireless number are subject to the TCPA. Jachimiec v. Regent Asset Management Solutions, LLC, 2011 U.S. Dist. LEXIS 56956 (S.D. Cal. June 5, 2011), citing Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (S.D. Cal. Apr. 13, 2011). The Fair Debt Collection Practices Act protects consumers from abusive, misleading and deceptive conduct; including unlawful telephone conduct.