top of page
  • Writer's pictureKyle Persaud

Your Rights Under the Fair Debt Collection Practices Act

Elsewhere on this blog, I have written that if a debt collector attempts to collect from you, you have certain rights under the Fair Debt Collection Practices Act (FDCPA), and that the FDCPA prohibits debt collectors from taking certain actions against you. In this post, I’ll cover the FDCPA in more detail, to explain precisely what your rights are.


To read the full text of the FDCPA, click here.


Where does the FDCPA apply?


Because the FDCPA is federal law, it applies nationwide, in every state, territory, and possession of the United States.


Who is a “debt collector”?


The FDCPA only applies to “debt collectors.” FDCPA defines “debt collector” as

“any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”


Courts have held that lawyers and law firms, who regularly engage in debt collection work, can be deemed debt collectors, and must comply with FDCPA.


The following people and entities are not “debt collectors” under the FDCPA:


·         Creditors and their employees


·         Officers and employees of the U.S. or a state government, if collecting any debt is part of their official duties


·         Process servers


·         Non-profit credit counseling organizations


What a debt collector may not do


Under FDCPA, a debt collector may not:


·         Communicate with you at a time or place that is “unusual” or “inconvenient.” Unless the collector knows otherwise, the collector must assume that it is inconvenient to communicate with you before 8:00 am or after 9:00 pm.


·         Continue to communicate with you if you tell him, in writing, that you do not want him to communicate with you.


·         Continue to communicate with you if you tell him, in writing, that you refuse to pay the debt.


·         Communicate with you at your workplace if the collector knows, or has reason to know, that your employer prohibits you from receiving the communication.


·         Discuss the debt with anyone other than you, your attorney, a credit reporting agency, the creditor, or the creditor’s attorney or the collector’s attorney.


·         Make any false or misleading representations to you or any other person.


·         Collect any more than is allowed by law.


·         Solicit a postdated check for the purpose of threatening or instituting criminal prosecution.


·         Deposit a postdated check before the date on the check.


·         Cause you to be charged for any communication by hiding the true purpose of the communication. This includes collect calls and telegram fees.


·         Take or threaten to take action to dispossess your property if the collector has no right to your property.


·         Communicate, or threaten to communicate, any credit information that the collector knows or should know is false. If you dispute the debt, the collector may not communicate anything about the debt unless he says that the debt is disputed.


·         Use any language or symbol on an envelope, other than the collector’s address, when mailing a letter to you. The collector may use his business name only if the name doesn’t indicate that he’s in the debt collection business.


·         Communicate with you by postcard.


·         Give you any form, if such form would lead you to believe that someone other than the creditor is participating in the collection of the debt, when that person is not participating in the collection.


·         Do anything “the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” Harassment, oppression, and abuse includes, but is not limited to:


o   Use or threat of violence or other criminal means


o   Use of obscene or profane language


o   Publishing a list of people who refuse to pay debts, except to a credit reporting agency


o   Advertising for sale of any debt, in order to coerce payment.


o   Causing a telephone to ring repeatedly


o   Engaging any person in telephone conversation repeatedly


What a collector must do:


·         If the debt collector knows that an attorney represents you with respect to the debt, the collector must communicate with your lawyer, and may not communicate directly with you unless the lawyer doesn’t respond in a reasonable time.


·         If the collector accepts a check that is postdated by more than five days, then, between three and ten days before he deposits the check, the collector must notify you in writing that he intends to deposit the check.


·         In his first communication with you, the collector must inform you that the communication is from a debt collector, and that any information obtained will be used for the purpose of debt collection.


·         In his first communication with you, or within five days after his first communication with you, the collector must disclose


o   The amount of the debt


o   The name of the creditor


o   That unless you dispute the validity of the debt within thirty days, the debt collector will assume the debt to be valid.


o   That if you dispute the validity of the debt within thirty days, the collector will mail you verification of the debt.


o   That, upon your request, the collector will provide you with the name and address of the original creditor, if different from the current creditor.


·         If you dispute the debt, or if you request the name or address of the original creditor, the collector may not communicate with you again until he sends you verification of the debt, or the name and address of the original creditor, whichever you have requested.


If the debt collector is looking for you


When a debt collector is communicating with someone in trying to find “location information” about you, he is restricted in what he may do. These restrictions include:


·         He must identify himself.


·         He must say that he is “confirming or correcting location information” about you.


·         He may identify his employer only if expressly requested.


·         He may not say that you owe any debt.


·         He may not communicate with the same person more than once, unless that person requests it, or unless the collector believes that the information the person previously gave the collector is false.


·         He may not communicate by postcard.


·         He may not place, on an envelope, any symbol that indicates he is collecting a debt.


·         If the collector knows you have a lawyer, he may not communicate with any person other than your lawyer, unless the lawyer does not respond within a reasonable time.


If a collector has violated the FDCPA, what can you do?


You may report the collector to federal regulatory agencies. The Consumer Financial Protection Bureau enforces many violations of FDCPA. You may file a complaint with the Consumer Financial Protection Bureau at this website here:


The Federal Trade Commission also enforces the FDCPA. You can file a complaint with the Federal Trade Commission here:


Other agencies that enforce FDCPA are:


·         The Federal Deposit Insurance Corporation (FDIC), if the collector is an FDIC-member bank


·         The National Credit Union Administration (NCUA), if the collector is an NCUA-member credit union


·         The Secretary of Transportation, if the creditor is a carrier subject to his jurisdiction


·         The Secretary of Agriculture, with respect to any activities subject to the Packers and Stockyards Act


You may also sue the collector. You may collect actual damages that you have sustained as a result of the collector’s violation. You may collect additional damages up to $1,000.


You may also collect attorney’s fees and court costs. You may sue in either state or federal court, and you may file your lawsuit at any time within one year after the date of the violation.


You should remember: Even if a collector has violated FDCPA, you still must pay the debt. Nothing in the FDCPA allows you to avoid payment of the debt. (For some debts, there may be other laws, outside the FDCPA, that can allow you to avoid payment.)


Do you have questions? Contact the Persaud Law Office


At the Persaud Law Office, we have represented many debtors against creditors. We strive to protect debtors from overreach. If you would like to discuss your rights further, contact the Persaud Law Office.

 

 





0 comments

Comentarios


Los comentarios se han desactivado.
bottom of page