Fair Debt Collection Practices Act

[HHM]

Here are some out-takes from the FDCPA regarding what collection agencies can and cannot do.

First, here is a link to the text of the entire act.

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt --

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the consumer's location;

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or

(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

(c) CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

(1) to advise the consumer that the debt collector's further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

(d) For the purpose of this section, the term "consumer" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.


A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3)1 of this Act.

(4) The advertisement for sale of any debt to coerce payment of the debt.

(5) 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.

(6) Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller's identity.


6) The term "debt collector" means 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. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

[mothersvox]

Thanks so much for posting that. It is so helpful. From this I see that many of the calls we have recently received do seem to be in violation of the law, especially with regard to 1) intent to harass with repeated ringing of phone; 2) failure to identify themselves (one company said they were calling b/c there was a problem with my SSN); 3) use of abusive language; and 4) calling at place of employment when already notified that it is against the employer's policies.

THANK YOU!

[dolomite]

My name is Matt Dolman and I am a Florida attorney who specializes in litigation under the Fair Debt Collection Practices Act. I have viewed this message board for quite some time and find it to be very informative.

It seems clear to me that collection agency's view violations as a simple cost of doing business that they are willing to bear. In other words, these very agency's that routinely violate the FDCPA do so with one simple idea in mind; that very few individual debtors will retain legal counsel and pursue a lawsuit based on such eggregious violations. The supervisors, managers, and principals (at these very collection agency's) fully understand the FDCPA and willfuly choose to ignore and even advocate violating the statute as a business decision. They realize that the gains (zealous collections) outweighs the cost of violating the statute due in large part to the fact that few attorneys litigate under this obscure statute.

If any poster on this board needs any further information or has an inquiry concerning the FDCPA, their particular situation, creditors who routinely violate the law, or any cause of action arising under the statute; feel free to contact me at <removed> or view my website at <removed> I am affiliated with attorney's from other states, so do not hesitate to contact me if you are not a Florida resident.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.

[HHM]

Some perspective on the FDCPA.

You should exercise your rights under the FDCPA if you are facing collections. HOWEVER, you need to realize, that using FDCPA tools is not a means to get out of debt. Also, you need to realize that the if a collector violates the FDCPA, the burden is on YOU to do something about it. Unfortunately, this section of our forum is littered with questions of "is this a violation" etc etc. The answer to the question is another question, "even if it is, so what?" "What are you going to do about it?"

The harsh reality is, that collectors know the risk is low for them to be sued for violations.