The Unfortunate Reality.
Many Americans are facing the sad reality of not being able to pay their bills. The country’s depressed economy has left many without jobs, or with far less income than during the boom times. Calls from debt collectors often impede the balance of silence and calm in your home, and can add undue pressure to financial and emotional stress. To make matters worse, some debt collectors attempt to collect debts using harassing tactics that may violate Federal and/or state law.
What is the FDCPA?
The Fair Debt Collection Practices Act (FDCPA) is a federal law that regulates how debt collectors may attempt to collect a debt from consumers. Unlike some state laws, the FDCPA applies only to third-party debt collectors, and does not apply to first party creditors. For example, the FDCPA does not govern the conduct of the department store (a first-party creditor) at which you have an outstanding account, but does govern the conduct of the collection agency (a third-party debt collector) the department store hired to collect the debt from you.
Examples of FDCPA Violations.
Examples of potential violations of the FDCPA include, but are not limited to, the following:
- The debt collector cursing or threatening to use violence in order to get you to pay the debt.
- Calling you before 8:00 A.M. or after 9:00 P.M.
- Calling you at your job after the debt collector knows they should not be calling you there.
- Contacting you even though the debt collector knows that you are represented by an attorney.
- Contacting your friends, neighbors, and relatives (other your spouse) without your permission or without an order from a court allowing such contact.
- Leaving voice messages that discloses information about your debt on an answering machine where it can be reasonably expected to be heard by others.
- The debt collector in an attempt to collect a debt, makes false and misleading statements or engages in some act the natural consequence of which is to harass you.
- The debt collector fails or refuses to identify himself/herself or their employer’s identity and/or fails to inform you that they are a debt collector.
You Have Rights and Remedies.
If you have been subject to any or all of the conduct listed above, you need not stand silent and take it. You should begin by immediately requesting, in writing, that the debt collector stop contacting you. Fax or mail (through certified mail with a return receipt) the debt collector a written request to stop contacting you, and keep a copy of the letter, fax confirmation and/or return receipt card. The FDCPA requires the debt collector – after the receipt of your written request – to cease all communication with you concerning the collection of the debt. The debt collector’s failure to honor your request may result in a violation of the FDCPA for which you can sue the debt collector for money damages.
You should also keep a written log of the calls from debt collectors to monitor the frequency of the calls, and to record in writing any offensive and/or threating statements made by the collector. Also, if debt collectors leave voice messages, you should save them.
If debt collectors are found to have violated the FDCPA, you could be entitled to money damages if you prevail in a lawsuit against the debt collector. Many states also have their laws that govern debt collection activities, and such laws often allow the debtor to sue the collector and/or creditor and collect money damages.
Most importantly, the facts and circumstances that led to your inability to pay a debt are not in any way relevant to your rights under the FDCPA and similar state laws. These laws are intended to protect you, and you should know your rights.
Authors: Marc Wites and Jay Arjoonsingh, of Wites Law Firm