Wednesday, May 7, 2008

Fair Debt and Texas Foreclosure

This opinion is from a long time ago, but I continue to get questions related to non-judicial foreclosures in Texas and the "30 day" language found in the Fair Debt Collection Practices Act and how it affects the "20 day" residential requirement under the Texas Property Code Sec. 51.002. This question was presented to the FTC, in fact, many years ago. The response, shown here, relates that the notices required by statute are notices required by law and therefore are not covered by the Fair Debt Collection Practices Act unless it is in connection with a demand for payment that is "not required by law". Essentially, if one is merely making the offer to cure known, as required by state law, it is not covered by the Act. It seems like splitting hairs, but essentially the Act is involved if it is anything more than what is specifically required by the Act. If you do a demand for payment, couch it in terms of the statutory "opportunity to cure" in your forms for foreclosure and it is less likely to kick in the 30 day validation notice requirement for consumer collections.

Collection outside the state of Texas

I'm often asked about collections out of state. A great place to locate lawyers with a familiarity with creditors' rights in another state is through the Commercial Law League of America. Members of the organization, often collection lawyers and agencies, can be searched by geographic location.