Debt collectors often use a simple method in the collection of debts – scare the debtor enough and the bill will be paid. However, these “simple methods” are often illegal, unethical and abusive, and more importantly, may very well violate the Fair Debt Collection Practice Act (FDCPA), irrespective of whether the debt is legitimate. In passing the FDCPA, Congress held hearings, took evidence and made specific findings that ‘[t]’here [was] an abundant of evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Thus, the FDCPA was meant to protect you, the consumer, even if you, for whatever reason, fail to pay certain debt. Keep in mind that the FDCPA was not meant to get rid of your debts, but only abuse behaviors in the collection of your debt.
Under the Fair Debt Collection Practice Act, a “debt collector” is anyone who regularly collects debts owed to others. This includes all collection agencies and attorneys who collect debts on a regular basis. In most instances, it does not include a creditor (department stores, for example) attempting to collect debts directly from customers. The debts covered include personal, family and household debts, including purchases/charges for automobile, medical care, credit cards, etc.
The following practices are illegal, unethical and/or abusive under the Fair Debt Collection Practice Act:
Contacting You or Third Parties
• A debt collector may not contact you before 8:00 am or after 9:00 pm any day, unless you agree.
• A debt collector may not contact you at work if the collector knows that your employer disapproves of such contact. Thus, you should fax a letter over to the collection agency or lawyer telling her/him that your employer disapproves of such calls.
• If you send a letter (preferably by fax, email or certified mail) to the debt collector not to contact you anymore, they MUST stop all such contacts. However, this does not make the debt go away, as they can pursue the debt in court.
• If the debt collector knows that you are represented by an attorney, they cannot contact you directly.
• The debt collector is not permitted to contact a third party (other than you or your attorney) unless to find out where you live, work and your telephone number, and may not do so more than once.
• The debt collector may not tell anyone (other than you or your attorney) that you owe money.
• Within 5 days after your initial contact with the debt collector, they must send you a written notice of the amount of money you owe, the name of the creditor, a statement that “unless you within 30 days of receipt of this notice, disputes the validity of the debt, or any portions thereof, the debt will be assumed to be valid.”
• The debt collector must provide to you a written statement that if you notify the debt collector in writing within the 30-day period that the debt, of any portions, is disputed, the debt collector will obtain verification of the debt and will mail it to you.
• The debt collector must provide you with a written notice in the initial communication that the debt collector is “attempting to collect a debt and that any information obtained will be used for that purpose.”
Harassing or Abusive Conducts
A debt collector may not …
• Use or threaten to use violence or other criminal means to harm you’re your reputation or property of you or other persons, in the collection of a debt, whether or not the debt is valid.
• Use obscene or profane language in order to abuse you into paying your debt.
• Publish a list of customers who refuse to pay their debts, except to a consumer reporting agency.
• Advertise any debt for sale to coerce payment.
• Make telephone calls constantly to annoy or harass you.
• Contact you by telephone and not disclose their identity.
False, Deceptive or Misleading Statements
A debt collector may not …
• Falsely represent or imply that the debt collector is affiliated with the US government or any state.
• Falsely represent the character, amount, or legal status of any debt.
• Falsely represent or imply that any individual is an attorney or that the communication is from an attorney.
• Represent or imply that nonpayment will result in the arrest or imprisonment of any person, or the seizure, garnishment, attachment, or sale of any property or wages unless such action is lawful and the debt collector intends to take such action.
• Threaten to take any action that cannot be legally taken or that is not intended to be taken. For example, accusing you of committing a crime, and falsely telling you that you will be prosecuted, unless they actually go through with such a threat. If the debt collector is an attorney, that attorney may not threaten to prosecute you criminally in order to convince you to pay your debt as this would be a violation of attorneys’ ethical codes.
• Falsely represent or imply that you have committed a crime or other conduct to disgrace you.
• Communicating or threatening to communicate to any person your credit information which is known (or should be known) to be false.
• Use any false representation or deceptive means to collect or attempt to collect a debt or to obtain information concerning you. Like, for example, contacting a third party and falsely representing that the caller is calling to conduct a survey.
• Fail to disclose in the initial communication (oral or written) that the “communication is from a debt collector” and they are “attempting to collect a debt and any information obtained will be used for that purpose.”
• Falsely represent or imply that documents are legal process, or sending actual legal process and falsely representing or implying that they are not legal process and do not require any action – in order to encourage a judgment of default, for example.
• False represent that they are associated or employed by a consumer credit reporting agency.
Unfair and Unconscionable Practices
Debt collectors may not:
• Collect any amount greater than your debt, including principal, interest, collection costs, etc, unless such amounts are permitted by agreement or your state’s law.
• Solicit from you a postdated check for the purpose of threatening or instituting criminal proceedings (for bounced check, for example).
• Depositing or threatening to deposit post dated checks prematurely.
• Causing you to pay for telephone charges to you by concealing the true nature of the call.
• Threatening to seize your property or garnish your wages without court action or legal authority.
Civil Liability for violation of the FDCPA
• Sue in state or federal court. You may file a lawsuit against the debt collector in either state or federal court within 1 year for violation of any part of the FDCPA. You can recover money for the actual damages you suffered plus an additional amount up to $1000 for each violation. You may also recover attorneys’ fees and costs. In case of a few or more individuals, all of you may be able to sue as a class (class action), and if successful, could recover money for damages up to $500,000, or one percent of the collector’s net worth, whichever is less.
• Report abuse to your state’s attorney general’s office or to the Federal Trade Commission.