Fair Debt Collection Practices Act (FDCPA)
Congress passed the Fair Debt Collection Practices Act (FDCPA) as part of Title VIII of the Consumer Credit Protection Act in 1978. The law was passed based on Congress’ finding of “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” and that “existing laws and procedures for redressing these injuries are inadequate to protect consumers.”
The FDCPA was designed to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.”
If you or anyone you know is being chased by a debt collector that may have violated the FDCPA, we can help. There are more details below about your rights under federal debt collection laws. However, for a consultationwith one of our experienced Hollywood consumer protection lawyers call us at 754-400-5150 or use our online form. Let the lawyers and staff of the Law Offices of Evan M. Rosen serve you!Details About the FDCPA
The FDCPA protects “consumers,” who are defined as any natural person obligated or allegedly obligated to pay any debt, from the actions of “debt collectors.” The Act defines a debt collector as any person who uses any instrumentality of interstate commerce or the mail, while engaged in a business whose principal purpose is the collection of debt, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. A creditor trying to collect its own debt can be covered by the definition of “debt collector,” but only if it uses a name other than its own to indicate that it is collecting or trying to collect the debt for someone else. Finally, a debt collector includes any party that uses any instrumentality of interstate commerce or the mail while engaged in a business whose principal purpose is the enforcement of “security interests.”
The term “debt collectors” does not include:
- Any officer or employee of the actual creditor while, in the name of the creditor, collecting debts for that creditor;
- Any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for the related or affiliated person and if the principal business of such person is not the collection of debts;
- Any officer or employee of the United States or any state to the extent that collecting or attempting to collect that debt is in the performance of his official duties;
- Any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;
- Any nonprofit organization which, at the request of a consumer, performs genuine consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and
- Any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity
- Is incidental to a genuine fiduciary obligation or a bona fide escrow arrangement,
- Concerns a debt which was originated by such person,
- Concerns a debt which was not in default at the time it was obtained by such person, or
- Concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. Because these parties are not considered to be “debt collectors,” the FDCPA does not apply to them.
The definitions of “debt collector” are very important for applying the FDCPA and determining what actions it prohibits. The following information details the actions that “debt collectors” cannot take under the FDCPA.Attempting to Locate You
When a debt collector communicates with any party (besides you) for the purpose of determining your whereabouts, they MUST:
- NOT say that you owe a debt;
- NOT communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
- Identify themselves, state that they are confirming or correcting information concerning your location, and, only if expressly requested, identify their employer;
- NOT communicate by postcard;
- NOT use any language or symbol on any envelope or in the contents of any communication sent by mail that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and
- After the debt collector knows you are represented by an attorney with regard to that debt and knows, or can readily find out, your attorney’s name and address, NOT communicate with any person other than your attorney, unless your attorney fails to respond within a reasonable period of time to the communication from the debt collector.
If a debt collector does not have your prior direct consent or the express permission of a judge who has jurisdiction over the matter, the debt collector CANNOT communicate with you regarding the debt in any of these ways:
- If the debt collector knows you are represented by an attorney with respect to such debt and knows, or can readily determine, your attorney’s name and address, unless your attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless your attorney consents to direct communication with you; or
- At any unusual time or place or any time or place known or which should be known to be inconvenient to you. Unless they have other information, a debt collector shall assume that the convenient time for communicating with you is after 8 a.m. and before 9 p.m. in your time zone.
- Where you work if the debt collector knows or has reason to know that your employer prohibits you from receiving such communication.
If a debt collector does not have your prior direct consent, or the express permission of a judge with jurisdiction over the matter, or as is reasonably necessary to effectuate a post-judgment judicial remedy, the debt collector may NOT communicate about the collection of any debt with anyone EXCEPT:
- Your attorney;
- A consumer reporting agency if otherwise permitted by law;
- The creditor;
- The creditor’s lawyer; or
- The debt collector’s lawyer.
After you have given written notice to a debt collector that you refuse to pay a debt or that you want the debt collector to stop communicating with you, the debt collector is NOT allowed to communicate with you any more regarding the debt, except to:
- Notify you that the debt collector is terminating further attempts;
- Inform you that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by the debt collector or creditor; or
- Where applicable, to tell you that the debt collector or creditor intends to invoke a specified remedy.
These provisions apply when you give notice to the debt collector by mail and when the notification is received. Your spouse, parent (if you are a minor), guardian, executor or administrator can make the request for you.No Abuse or Harassment
Debt collectors are barred from engaging in any harassing, oppressive or abusive conduct in connection with the collection of a debt. These terms include, but are not limited to:
- The use of obscene or profane languageor other abusive language;
- Thepublication of your name on a list of consumers who allegedly refuse to pay debts, except to a credit bureau as specially defined;
- The use or threat of use of violence or other criminal means to harm anyone’s physical person, reputation or property;
- The advertisement for sale of any debt to coerce payment of the debt;
- Repeated or continuous callswith the intent to annoy, abuse or harass any person at the called number;
- Calling without a meaningful disclosure of the caller’s identity.
False or Misleading Representations Prohibited
Debt collectors are barred from using any false, deceptive or misleading representation or means in connection with collecting a debt, including but not limited to:
- The false representation of: A) The character, amount or legal status of any debt; or B) Any services rendered or compensation that may be lawfully received by any debt collector for the collection of a debt.
- The false representation or implication that any individual is an attorney or that any communication is from an attorney;
- The false representation or implication that the debt collector is vouched for, bonded by or affiliated with the United States or any state, including the use of any badge, uniform or facsimile thereof;
- The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action;
- The threat to take any action that cannot legally be taken or that is not intended to be taken;
- The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause you to: A) lose any claim or defense to payment of the debt; or B) become subject to any practice prohibited by this Act.
- Communicating or threatening to communicate to any person, credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed;
- The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued or approved by any court, official or agency of the United States or any state, or which creates a false impression as to its source, authorization or approval;
- The false representation or implication that you committed any crime or other conduct in order to disgrace you;
- The failure to disclose in the initial written communication with you and, in addition, if the initial communication with you is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph does not apply to a formal pleading made in connection with a legal action;
- The false representation or implication that accounts have been turned over to innocent purchasers for value;
- The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning you;
- The use of any business, company or organization name other than the true name of the debt collector’s business, company or organization;
- The false representation or implication that documents are legal process (papers used to initiate a lawsuit);
- The false representation or implication that legal process documents are not what they are or do not require action by you; and
- The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as specially defined in the Act.
The FDCPA prohibits debt collectors from using unfair or unconscionable means to collect or attempt to collect any debt. This includes but is not limited to:
- The collection of any amount (including interest, fees, charges or expenses incidental to the principal obligation) unless it is expressly authorized by the agreement creating the debt or otherwise permitted by law;
- The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than 5 days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than 10 nor less than 3 business days prior to such deposit;
- The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution;
- Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument;
- Causing charges to be made to any person for communications by concealment of the true purpose of the communication. This includes charges for collect telephone calls;
- Taking or threatening to take any non-judicial action to effect dispossession or disablement of property if: A) there is no present right to possession of the property claimed as collateral through an enforceable security interest: B) there is no present intention to take possession of the property; or C) the property is exempt by law from such dispossession or disablement;
- Communicating with you by postcard regarding a debt; and
- Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with you by mail, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
Unless the following information is contained in the debt collector’s initial communication or unless you have already paid the debt, within five days after the initial communication, the debt collector MUST provide you with a written notice that contains the following information:
- The amount of the debt;
- The creditor’s name;
- A statement that unless you, within 30 days after receipt of the notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
- A statement that if you notify the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against you and a copy of that verification or judgment will be mailed to you by the debt collector; and
- A statement that, upon your written request within the 30-day period, the debt collector will provide you with the name and address of the original creditor, if different from the current creditor.
The debt collector must stop collection efforts regarding a disputed debt or any disputed portion of the debt if you provide written notice to the debt collector within 30 days that the debt or any portion of it is disputed. The debt collector cannot resume collection efforts until it obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to you by the debt collector.
While we strongly recommend you hire a lawyer to dispute a debt, despite the language in the debt collector’s initial contact, your failure to dispute the validity within 30 days of the initial contact MAY NOT be construed in any way as an admission of liability in any legal proceeding.Multiple Debts
In situations where you owe more than one debt and you make a single payment to a debt collector with respect to those debts, the debt collector is prohibited from applying your payment to a disputed debt. Also, where applicable, the debt collector must apply your payment in accordance with your directions.Lawsuits by Debt Collectors
A debt collector that brings a lawsuit against you on a debt MUST:
- In the case of an action to enforce an interest in real property securing your obligation, bring such action only in a judicial district or similar legal entity in which the real property is located; or
- In the case of an action not for real property, bring such action only in the judicial district where: A) you signed the contract being sued on; or B) where you live at the commencement of the action.
Debt collectors that fail to comply with any provision of the FDCPA can be liable to you for:
- Any actual damages sustained: A) in the case of any action by an individual, such additional damages as the court may allow up to $1,000; or B) in the case of a class action:(i) such amount for each named plaintiff as could be recovered, and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 percent of the net worth of the debt collector; and
- In the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.
- If the court finds the action was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.
The court must also consider the frequency and persistence of the debt collector’s noncompliance when determining the amount of liability. Other factors include the nature of the noncompliance and the degree to which it was intentional. If the debt collector can show by a preponderance of evidence that the violation was not intentional and resulted from a genuine error, notwithstanding the maintenance of procedures reasonably adopted to avoid any such error, then a debt collector cannot be held liable under the FDCPA.
Another key point: Nothing in the FDCPA can stop, limit, or affect any person subject to its provisions from also complying with the laws of any state with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of the FDCPA, and then only to the extent of the inconsistency. The FDCPA clearly states: “A State law is not inconsistent with this title if the protection such law affords any consumer is greater than the protection provided by this title.”
Contact Our Hollywood Consumer Protection Attorneys Today
If debt collectors are pursuing you, we can help! Don’t delay. For a consultation with one of our experienced Hollywood consumer protection attorneys, call us at 754-400-5150 or fill out our online form. Let the lawyers and staff of the Law Offices of Evan M. Rosen serve you!More Information on Consumer Protection: