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Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA) is a consumer protection law designed to protect borrowers from abusive debt collection practices.  The FDCPA establishes rules  which debt collectors must follow when conducting business and defines a number of rights for consumers involved with debt collectors.  If you believe you may have an FDCPA claim, or if you are being harassed by a debt collector, click here to schedule a time to speak with an attorney.  We can help!  To learn more about the FDCPA, read on.


 

Who is covered by the FDCPA?

Generally speaking, the FDCPA applies only to third party debt collectors—not internal collectors for an “original creditor”. In addition, some federal courts have ruled that a collector of debt is not a “creditor” but is rather a “debt collector” under the FDCPA where the collector of debt buys defaulted debt from an original creditor for the purpose of debt collection. The definitions and coverage have changed over time. The FDCPA itself contains numerous exceptions to the definition of a “debt collector,” particularly after the October 13, 2006, passage of the Financial Services Regulatory Relief Act of 2006. Attorneys, originally explicitly exempted from the definition of a debt collector, have been included (to the extent that they otherwise meet the definition) since 1986.

The FDCPA’s definitions of “consumers” and “debt” specifically restricts the coverage of the act to personal, family or household transactions. Thus, debts owed by businesses (or by individuals for business purposes) are not subject to the FDCPA.

What Type of Conduct is Prohibited under FDCPA?

The FDCPA prohibits certain types of “abusive and deceptive” conduct when attempting to collect debts, including the following:

  • Hours for phone contact: contacting consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local time
  • Failure to cease communication upon request: communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that the collector intends to file a lawsuit or pursue other remedies where permitted
  • Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously: with intent to annoy, abuse, or harass any person at the called number.
  • Communicating with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer
  • Contacting consumer known to be represented by an attorney
  • Communicating with consumer after request for validation has been made: communicating with the consumer or the pursuing collection efforts by the debt collector after receipt of a consumer’s written request for verification of a debt made within the 30 day validation period (or for the name and address of the original creditor on a debt) and before the debt collector mails the consumer the requested verification or original creditor’s name and address
  • Misrepresentation or deceit: misrepresenting the debt or using deception to collect the debt, including a debt collector’s misrepresentation that he or she is an attorney or law enforcement officer
  • Publishing the consumer’s name or address on a “bad debt” list
  • Seeking unjustified amounts, which would include demanding any amounts not permitted under an applicable contract or as provided under applicable law
  • Threatening arrest or legal action that is either not permitted or not actually contemplated
  • Abusive or profane language used in the course of communication related to the debt
  • Communication with third parties: revealing or discussing the nature of debts with third parties (other than the consumer’s spouse or attorney) (Collection agencies are allowed to contact neighbors or co-workers but only to obtain location information; disreputable agencies often harass debtors with a “block party” or “office party” where they contact multiple neighbors or co-workers telling them they need to reach the debtor on an urgent matter.
  • Contact by embarrassing media, such as communicating with a consumer regarding a debt by post card, or using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of mail or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business
  • Reporting false information on a consumer’s credit report or threatening to do so in the process of collection

Required conduct

The Act requires debt collectors to do the following (among other requirements):

  • Identify themselves and notify the consumer, in every communication, that the communication is from a debt collector, and in the initial communication that any information obtained will be used to effect collection of the debt
  • Give the name and address of the original creditor (company to which the debt was originally payable) upon the consumer’s written request made within 30 days of receipt of the §1692g notice;
  • Notify the consumer of their right to dispute the debt (Section 809), in part or in full, with the debt collector.
  • Provide verification of the debt If a consumer sends a written dispute or request for verification within 30 days of receiving the §1692g notice, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether. Such asserted disputes must also be reported by the creditor to any credit bureau that reports the debt. Verification should include at a minimum the amount owed and the name and address of the original creditor.
  • File a lawsuit in a proper venue If a debt collector chooses to file a lawsuit, it may only be in a place where the consumer lives or signed the contract. Note, however, that this does not prevent the debt collector from being sued in other venues for violating the Act, such as when the consumer moves outside the venue and a letter demanding payment is forwarded to the new address, even if the debt collector is unaware of such a change in residence.

Enforcement of the FDCPA

Debtors may  file a private lawsuit in a state or federal court to collect damages (actual, statutory, attorney’s fees, and court costs) from third-party debt collectors. The FDCPA is a strict liability law, which means that a consumer need not prove actual damages in order to claim statutory damages of up to $1,000 plus reasonable attorney fees if a debt collector is proven to have violated the FDCPA. The collector may, however, escape penalty if it shows that the violation (or violations) was unintentional and the result of a “bona fide error” that occurred despite procedures designed to avoid the error at issue.

Alternatively, if the consumer loses the lawsuit and the court determines that the consumer filed the case in bad faith and for the purposes of harassment, the court may then award attorney’s fees to the debt collector.

To discuss your potential FDCPA claim with an attorney, click here.