The Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (or “FDCPA”) is a body of laws designed to protect consumers from abusive debt collectors. Whether it be never ending phone calls, threatening letters, or being falsely accused of owing money, the FDCPA was enacted to ensure that no consumer put up with any of it and be given an opportunity to manage their debt in a civil manner.
Perhaps the most important part of the FDCPA is the manner in which it empowers consumers to fight back against abusive debt collectors. The FDCPA allows those consumers who have endured creditor harassment to sue the debt collector for up to $1,000.00 statutory damages, plus actual damages (e.g., mental anguish, phone charges, etc.), plus attorneys fees. Because consumers are so empowered under FDCPA most consumer attorneys will pursue a person’s case on a contingency-type basis.
Although the FDCPA offers broad protections, it only applies under certain circumstances:
• The debt must be a consumer debt. The FDCPA will not apply if the debt is a business debt.
• The debt collector is not the original creditor. The FDCPA really only applies to third party collection agencies. This is not to say that there aren’t laws that apply when the collector is the original creditor. The FDCPA will apply under some narrow circumstances when the collector is the original creditor - also, there might be some State laws that will apply.
• There other very specific circumstances where the protections afforded under the FDCPA won’t apply.
• Just because the collector is the original creditor, or because the underlying debt is a business debt, there are many different protections afforded under State and Federal law and a consumer attorney will best be able to determine which laws apply and afford the most protection.
Violations of the FDCPA include:
By Making False or Misleading Representations. In communicating with the consumer, the communication (phone call, letter, voice messages, etc.):
• gives a false impression as the character, amount or legal status of the debt,
• gives the false impression that the collector is an attorney’s office, a credit reporting agency, or is affiliated with the federal government or state government,
• gives the false impression that the collector is going to pursue some action that is illegal,
◦ For example; giving the impression that non-payment of the debt would result in arrest when arrest under such circumstances would be illegal.
• threatens legal action that the debt collector has no intention of pursuing,
◦ For example; the debt collector writes a letter claiming that if no payment is received within 10 days that they will file a law suit – but they never file a lawsuit, nor did they have any intention of doing so.
• gives the false impression that the consumer has committed a crime by not paying his/her debt, or any other type of conduct in order to embarrass the consumer,
• gives the false impression to be an official court document or government (e.g., a court order, a subpoena, a warrant, etc.).
If a debt collector uses any false, deceptive, or misleading representation or means in connection with the collection of a debt that’s not listed above, the FDCPA will most likely still offer the consumer protection from it.
Utilizing Unfair Practices in Collection of Debt:
• the debt collector attempts to collect more money than was allowed under the original contract,
• the debt collector asked for, accepted, deposited, or threatened to deposit, a post dated check,
• the debt collector has caused the consumer to incur financial charges (e.g., accept collect calls, travel expenses, overnight rapid delivery fees, etc.)
• the debt collector has publicized the debt by placing derogatory symbols or words like, “dead beat” on the outside of an envelope or by using postcards to try and collect on the debt,
• the debt collector unlawfully repossesses, levies or disables any personal property of the consumer (or threatens to),
• the debt collectors attempt to collect on an old debt, the collection of which is barred by the statute of limitations,
• any other unfair or outrageous collections activity or attempted collections activity.
Harassment and Abuse
• the debt collector uses or threatens to use violence or some other criminal means to collect the debt,
• the debt collector uses obscene, profane or other abusive language,
• the debt collector calls endlessly and/or engages the consumer in conversations repeatedly,
• the debt collectors call without saying who they are,
• the debt collector has published a “dead beat list” of consumers who supposedly don’t ay their debts,
• the debt collector has engaged in any conduct that is meant to, or results in the harassment, oppression or abuse of the consumer
Communications with the Consumer and Others
• the debt collector communicates with the consumer at times the debt collector knows or should know are inconvenient for the consumer,
◦ for example: phone calls after 9:00pm or before 8:00am; phone calls or visits at work when the debt collector knows that such communications are inconvenient for the consumer or that their employer doesn’t allow such calls,
• the debt collector communicates with the consumer after it knows that the consumer is represented by an attorney,
• after sending the debt collector a letter disputing the validity of the debt or asking the debt collector to cease all further communication, the debt collector nonetheless continues to contact the consumer,
• the debt collector contacts persons other than the consumer (e.g., the consumer’s family and friends) and discusses or publicizes the alleged debt owed, fails to identify themselves, threatens to collect the debt from them (with no legal basis for making such a claim)
• the debt collector sends a collection notice with text in plain view that refers to the consumer as a “dead beat” or the like. Such as a post card with bright red letters that say, “Pay your bills, DEAD BEAT.”
• the debt collector sends out a collection letter that simulates a court order or some other court document.
The FDCPA is designed to protect against abusive debt collectors, no matter the manner in which they choose to abuse. If you are enduring harassment odds are that it is illegal and you can sue the debt collector for damages, regardless of whether it is listed above or not.
The best resource for finding out whether you have a valid case against a debt collector for violations of the FDCPA (or other consumer protection law) is a local consumer attorney.