What a Debt Collector Can and Can’t Do: Your Rights Under the FDCPA
Sept. 11, 2017
A federal statute called the Fair Debt Collection Practices Act (“FDCPA)”, 15 U.S.C. § 1692k, protects consumers in the case of debt collection. This strict liability statute applies to those “who regularly collect or attempt to collect debts owed or due another,” putting restrictions on those companies. Thus the FDCPA provides a necessary shield and tool to consumers in the case of wrongful harassment up to and including the ability to bring a class action.
How Does the FDCPA Protect My Rights?
Generally the statute prohibits the following conduct:
Failing to provide a proper “validation notice”. Within 5 days after an initial communication, a debt collector must send the consumer a written notice containing: (1) the amount of the debt; (2) the name of the creditor; and (3) a statement that the consumer has 30 days to dispute the debt.
Failing to cease collection activities while the debt in dispute. If the consumer disputes the debt after receiving a validation notice, the debt collector must cease collection activities until the validation procedure is completed.
Making the false representation that a communication is from an attorney. Debt collectors cannot send correspondence or claim attorney involvement when they are not an attorney.
Making the false representation that failure to pay will result in arrest or imprisonment. Debt collectors cannot have a consumer arrested or sent to jail for not paying a debt.
Threatening to take any action that cannot legally be taken. Examples would include: an unlicensed attorney threatening to file a lawsuit; threatening suit on a time-barred (past the state statute of limitations) debt, or threatening to sue on bankruptcy discharged debt.
Collecting any amount not expressly authorized by the agreement creating the debt or permitted by law. This is sometimes referred to as “debt padding,” and includes instances where the collector tacks on fees not allowed under the law.
Calling before 8 a.m. or after 9 p.m.
Making repeated or continued calls designed to harass the debtor.
Calling the debtor's place of employment when the collector knows the employer prohibits such contacts.
Communicating with a debtor when the debt collector knows the debtor is represented by counsel.
Any other harassing, abusive or deceptive conduct by debt collectors. We've seen all types of outrageous conduct by debt collectors. As a general rule, if it seems abusive, then it's probably a FDCPA violation!
While this is not a complete list, every consumer should be aware of what rights they have in the case of collection, and should not be made to suffer any wrongful conduct in pursuing those debts.
In addition to your rights under the FDCPA, a separate statues called the Telephone Consumer Protection Act (“TCPA”) forbids “robo-call” dialing services from a debt collector to your cell phone. A debt collector may not contact a debtor using an “auto-dialer” or “pre-recorded message system” which calls the consumer's cell phone unless the consumer has given their express permission. It's easy to tell if your collector is doing so; no live caller will be on the line when you answer the phone, and you may hear a message asking you to wait for a representative. If this happens to you, you may have a claim for damages. Here is what you can do to protect yourself from wrongful conduct by debt collectors: Always keep a log of the date, time, name and telephone number of collections calls. If you can, record the call after telling the collector “I am recording our call; if you continue talking that will be considered consent to being recorded.” Save any voice messages and correspondence from collectors.
If you have been harassed or mistreated by debt collectors with conduct prohibited by the FDCPA get your Free Case Review now.