Benjamin Law Practice, PLLC

What is “Consent” under the Telephone Consumer Protection Act (TCPA) and How do we Revoke?

Mon, 01 Oct 2018 15:23:00 GMT

What is consent under the TCPA? It is a question that many courts have faced and tried to answer but has still left us asking the same question. In most circumstances, to establish consent we start from the beginning at the point where the consumer opens up the credit card, car loan, mortgage loan, etc. Now many of us will admit that we don’t read the paper work handed to us during the process of getting credit or getting a mortgage. Most of us though do remember the information we provide the company like our address, email and telephone numbers. In those documents there usually is a spot for you to put down your cellphone number so that the bank or car company can contact you. Right there, you have just given that company your consent to call you on that cellphone number.

Now you are probably asking, “How can I revoke my consent?” Revocation of consent can be done by any reasonable means including in writing or orally. Osorio v. State Farm Bank, F.S.B. , 746 F.3d 1242 (11th Cir. 2014). You can revoke your consent by simply telling the company to “stop calling my cellphone.” Now the important thing to remember is once you have told the company to “stop calling your cellphone” they must stop calling your cellphone using an automatic dialer system or pre-recorded voice. The company is however allowed to continue to call your cellphone, but they must do so without using an autodialer or pre-recorded message. Essentially, there must be a human involved when they dial your cellphone number. Often, creditors or debt collectors ignore revocation and continue to harass consumers by improperly using an auto-dialer system.

If you believe that you are receiving auto-dialed or pre-recorded phone calls from a creditor, debt collector or any other company who is attempting to collect a debt from you, contact Benjamin Law Practice, PLLC. For more information about TCPA violations or on filing a case, please visit our website or call directly at 727-888-4135 .

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Telephone Consumer Protection Act (TCPA) – What is an Auto-Dialer?

Thu, 16 Aug 2018 19:12:00 GMT

What is an auto-dialer? It seems like courts across the country are constantly faced with this ever evolving question. In the U.S. District Court for the Southern District of Florida, the Court held that the Defendant, Ocwen Loan Servicing, LLC, was using an auto-dialer system to contact the Plaintiff after the Plaintiff revoked his consent to be called on his cell phone. See Jones v. Ocwen Loan Servicing, LLC , Case No.: 0:16-cv-62967 (S.D. Fla. Jan. 29, 2018). In Jones v. Ocwen Loan Servicing, LLC , the Defendant testified in their deposition that the calls placed to the Plaintiff were done using two separate systems, which communicated with one another. The first system held the telephone numbers to be dialed and would randomly select one of the numbers. After selecting the number to be called, the first system would communicate that telephone number to the second system, which would dial the telephone number and send the call to an agent once connected. Based on the Defendant’s deposition, the Court held the Defendant was using an auto-dialer in violation of the Telephone Consumer Protection Act (TCPA).

If you believe that you are receiving auto-dialed or pre-recorded phone calls from Ocwen Loan Servicing, LLC or any other company who is attempting to collect a debt from you, contact Benjamin Law Practice, PLLC. For more information about TCPA violations or on filing a case, please visit our website

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Facing suit by a Credit Card or Debt Collector?

Sun, 08 Jul 2018 03:18:00 GMT

If you have been sued by a credit card company or a debt collector do not be afraid. Seek representation immediately! Many times credit card company’s or debt collectors take advantage of those that do not seek representation. I have heard some horror stories, such as debt collectors using harassing language, threaten to put my clients in jail, or multiple calls a day including at clients place of employment.

There are multiple laws that these debt collectors must follow when filing suit. A big one is the Fair Debt Collection Practices Act (Florida has its own statute titled the Florida Consumer Collection Practices Act). If the debt collector uses harassing language, threatens to throw you in jail, or calls at all hours of the day, this statute can be used to counter sue the debt collector, dismiss the case, and get money in your pocket! In addition, the debt collector must be able to prove Standing (the right to be in Court) and they must be able to prove damages. Often, the debt collectors do not have the proper paperwork and are unable to meet their burden. If this is the case, we will be able to get the case dismissed or force a very favorable settlement.

Recently, Benjamin Law Practice, PLLC was retained on a credit card suit where the consumer already had a judgment entered against him. Most firms would have walked away from this type of case or pushed bankruptcy on the consumer. Our firm thinks outside the box to help consumers resolve their debt issues in a way that is best for the consumer. The firm was able to identify a huge problem with the Judgment, filed a 1.540 motion to vacate judgment, and created instant leverage. What transpired subsequently is what happens quite often in these cases. The creditor did not wish to litigate against our client, conceded their judgment was void, and threw in the towel. Ultimately, they offered our client a settlement that could not be passed up which resulted in a dismissal of the case.

Benjamin Law Practice, PLLC has assisted countless consumers all over Florida resolve their debt issues. We have stopped a number of collection cases and dismissed many of these cases. The proven results speak for themselves. Let us put our experience to work for you with an aggressive and trustworthy representation at an affordable cost. Don’t be a “number” at a big firm. Be part of the family with Benjamin Law Practice, PLLC! Please check out our website at www.benjaminlawpractice.com for further information, including contact information.

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Is your Home Owners Association (HOA) threatening Foreclosure or filed a Foreclosure Action Against You?

Sun, 06 May 2018 17:51:00 GMT

Has your HOA threatened or filed a Foreclosure action against you? If so, you need to hire a foreclosure defense attorney that will go to bat for you quickly and understands and is knowledgeable about various aspects of the relevant law and case law to aggressively fight for you.

I often hear from clients statements such as “I didn’t know the HOA could take my home in a foreclosure…” or “it doesn’t seem fair that the HOA could take my home away…” Unfortunately for many homeowners, HOA’s and Condominiums have the ability under Florida law to foreclose on past due assessments even if you are current on your mortgage with the bank.

However, not all is lost! There are multiple defenses that can be raised which could result in a dismissal of the case. For instance, the HOA is required to record a proper Claim of Lien with accurate accounting. If not proper, a Motion to Dismiss or a Defendant’s Motion for Summary Judgment could be filed to dismiss the entire foreclosure action. See S aar v. Wellesley at Lake Clarke Shores Homeowners Ass’n, Inc ., 68 So.3d 417, 419 (Fla. 4th DCA 2011) (reversing the associations judgment, since the associations accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due).

IF after a through review, including after discovery in litigation, the associations case is legally sufficient, then a stipulated settlement option would be best. We have negotiated countless discounted settlements with various HOA’s in Florida. However, this can only be accomplished if you properly litigate the case to gain leverage. Just last week, our firm was able to successfully save a clients home at mediation with aggressive negotiations that reduced our clients liability to the HOA by approximately 20k! If you (or anyone you know) is facing a HOA foreclosure, please contact our firm immediately so we can aggressively fight the HOA on your behalf.

Benjamin Law Practice, PLLC has assisted countless homeowners all over Florida in saving their home. We have stopped a number of foreclosures and dismissed many cases. We have also negotiated settlements with all major banks and servicers, saving our clients thousands of dollars and their homes. The proven results speak for themselves. Let us put our experience to work for you with an aggressive and trustworthy representation at an affordable cost. Don’t be a “number” at a big firm. Be part of the family with Benjamin Law Practice, PLLC! Please check out our new website at www.benjaminlawpractice.com for further information, including contact information.

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Reverse Mortgage Foreclosure Case Against a 92-year old widow DISMISSED!

Mon, 23 Apr 2018 19:09:00 GMT

Through aggressive Foreclosure Defense strategies, I was able to get a Final Judgment vacated, upcoming sale cancelled, and a foreclosure case dismissed for a 92-year old client in Miami-Dade this morning.

The client retained previous counsel that unfortunately did not look into the case and unbelievably consented to Judgment. Prior counsel did not even put up a fight! The 92-year old widow was at risk for losing her home and getting kicked out on the street. The reason the lender gave is that the homeowner “ceased to occupy the property.” Our client has always lived at the property, but the lender figured it was easier (and profitable) to just file a foreclosure case to take her home. I immediately filed a 1.540(b) (3) Motion to Vacate Final Judgment under misrepresentation and fraud. Our client executed an affidavit and we filed the verified motion. We set the motion for a special set evidentiary hearing to force the bank and their counsel to prove they had the right to foreclose on our client’s home. The Complaint alleged our client had “abandoned” her property, which was completely false. In fact, this pleading filed by the Bank in a Court of law was not only a misrepresentation, but it was clearly fraud. Our client never abandoned the property. At the hearing, the Judge granted our relief including dismissal of the case. Our client was elated as she was able to save her home and can rest easy tonight. This is another example of fraud by an overpowered Bank and their deep pockets. We strive to fight for homeowners everyday facing similar situations and have no problem holding the banks and their lawyers to the fire.

Benjamin Law Practice, PLLC has assisted countless homeowners all over Florida in saving their home. We have stopped hundreds of foreclosures and dismissed many cases over the years. We have also negotiated settlements with all major banks and servicers, saving our clients hundreds of thousands of dollars and their homes. The proven results speak for themselves. Let us put our experience to work for you with an aggressive and trustworthy representation at an affordable cost. Don’t be a “number” at a big firm. Be part of the family with Benjamin Law Practice, PLLC!

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