Have you fallen behind on your payments? If so, it is important to know what debt collectors can and cannot do when attempting to collect a debt. Although creditors have the right to be repaid, borrowers have a legal right to be treated fairly. The Fair Debt Collection Practices Act (FDCPA) is designed to protect borrowers from unlawful and unfair treatment. Debt collectors often engage in abusive, deceptive, and unfair activity. Don’t let debt collectors violate your rights!
The FDCPA applies to personal debts (not business debts). Examples of personal debts include car loans, credit card bills, and medical bills.
Communication With The Borrower
When a debt collector first contacts you, they must tell you that he or she is attempting to collect a debt and that any information obtained from you will be used for the purpose of collecting on the debt. In any communication after the initial contact, the collector must tell you his or her name and the name of the collection agency.
Here are a few common examples of FDCPA communication violations.
1 A debt collector may not contact you at an unusual or inconvenient time or place. For example, calls before 8:00 a.m. and after 9:00 p.m. are presumed to be inconvenient.
2 A debt collector may not contact you if the debt collector knows that you are represented by an attorney.
3 A debt collector may not contact you at work if the debt collector knows that your employer does not allow you to receive collection calls at work. If a debt collector contacts you at work and you are not allowed personal calls, tell the collector that your employer prohibits such calls.
Harassment and Abuse
A debt collector cannot engage in harassing, oppressive or abusive behavior. You do not have to listen to or put up with harassment from a debt collector. If a debt collector is harassing you, you may hang up the phone or put the phone down and walk away.
A debt collector may not:
- Use or threaten to use violence;
- Harm or threaten to harm you, another person, you or another’s reputation, or property;
- Use obscene, profane, or abusive language;
- Publish your name stating that you are a person who does not pay their bills;
- List your debt for sale to the public;
- Call repeatedly;
- Call you without identifying themselves as a debt collector.
False or Misleading Representations
A debt collector may not use false, deceptive, or misleading information when attempting to collect a debt. This means that a debt collector may not lie when contacting you about a debt.
Examples of false or misleading representations include:
- Claims of being a law enforcement agency or connected to the government;
- Claims that he or she is an attorney or that communication is from an attorney;
- Lying about or misrepresenting the amount you owe or the amount the collection agency will receive;
- Claims that you will be imprisoned or have property seized (unless the creditor or collection agency intends to do this and has the ability to do so. There are extremely limited reasons when one could go to jail over a debt);
- Threaten to take action that the debt collector does not intend to take or is not allowed to take;
- Falsely claim you committed a crime;
- Threaten to sell a debt to a third party and claim that you will lose your defenses against the creditor (such as breach of warranty);
- Send a document that looks like it is from a court or attorney.
The FDCPA prohibits a debt collector from engaging in unfair or unconscionable means to collect a debt. For example, a debt collector may not:
- Add interest, fees or charges unless authorized to do so under the original agreement or by state law;
- Deposit a postdated check prior to the date on the check;
- Accept a check that is postdated by more than five days unless it notifies you between 3 and 10 days in advance of when the check will be deposited;
- Solicit a postdated check with the intent of then threatening you with criminal prosecution;
- Cause you to incur communication charges (such as fees from collect calls) due to concealment of the true purpose of the communication;
- Threaten to seize or repossess property if the debt collector has no right or intent to do so;
- Put any words or symbols on the outside of an envelope that indicate they are attempting to collect a debt.
Third Party Communication
Under the FDCPA, collection agencies may not contact third parties about your debt. However, there are a few exceptions to this rule which include:
- Your attorney: If the collector knows you are represented by an attorney, they must talk only to your attorney (and not contact you), unless you give them permission to do so or your attorney did not respond to the communication;
- A credit reporting agency;
- The original creditor;
- Collectors are allowed to contact your spouse, your parents if you are a minor, and your codebtors. However, the collector may not contact them if you send a letter asking the collector to stop contacting you;
- A debt collector may contact a third party for the limited purpose of gathering information regarding your whereabouts. If contacting a third party, a debt collector:
a. Must state their name and that they are confirming location information about you;
b. Cannot identify their employer unless asked to do so;
c. Cannot state that you owe a debt;
d. Cannot contact a third party more than once unless required to do so by the third party, or the third party’s response was wrong or incomplete and the third party has the ability to correct or complete the information;
e. Cannot communicate by postcard;
f. Cannot use words or symbols on the outside of an envelope that indicate they are attempting to collect a debt if it would give away the purpose of the letter (this includes a business logo or letterhead);
g. Cannot contact a third party if they know you are represented by an attorney.
The FDCPA prohibits abusive, misleading and unfair treatment. If a debt collector has abused or harassed you, you may have a claim against the debt collector. You may legally be entitled to statutory or actual damages due to the debt collectors’ illegal behavior. If you feel you are a victim of unlawful or unfair debt collection practices, contact Usman Law Firm for a free consultation.