The Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq, is a federal law that protects consumers from the use of abusive, deceptive and unfair debt collection practices by debt collectors. The Fair Debt Collection Practices Act is often referred to as the FDCPA.
The Kittell Law Firm has represented many consumers in Fair Debt Collection Practices Act lawsuits. Check out our recent Fair Debt Collection Practices Act cases page.
A common misconception is that the Fair Debt Collection Practices Act applies to the collection of all debts. This is not true. It only applies to the collection of consumer debt by a third party debt collector. The collection of business debt falls outside of the protections of the Fair Debt Collection Practices Act. Also, the Fair Debt Collection Practices Act does not apply to the collection of a consumer debt by the original creditor of the debt (i.e. the person or company to whom it was originally owed). Despite these limitations, the Fair Debt Collection Practices Act provides strong protections to consumers regarding the collection of consumer debt by third party debt collectors and collection agencies.
For instance, the Fair Debt Collection Practices Act requires that debt collectors use discretion when collecting debts. Debt collectors are not allowed to discuss with anyone other than the consumer (or his or her attorney) that they are trying to collect a debt from the consumer. When communicating with a third party, the debt collector is allowed to request contact information about the consumer but is not allowed to identify itself as a debt collector or indicate in any way that they are requesting the contact information for the purpose of collecting a debt. The debt collector is allowed to report the debt to the credit bureaus for inclusion on the consumer’s credit reports, unless otherwise prohibited by another law.
A debt collector may not contact a consumer at his or her 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.
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. This includes, but is not limited to, the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person, the use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader, 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 the Fair Debt Collection Practices Act, the advertisement for sale of any debt to coerce payment of the debt, 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 and, except when communicating with a third party, the placement of telephone calls without meaningful disclosure of the debt collector’s identity.
The debt collector must also stop communicating with the consumer regarding the collection of the debt under certain circumstances. 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 to advise the consumer that the debt collector’s further efforts are being terminated; 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 where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
The debt collector must also cease communicating with the consumer 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.
Finally, if the consumer notifies the debt collector in writing within thirty days of receiving the initial written communication regarding the debt from the debt collector that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
A debt collector may not communicate with a consumer in connection with the collection of any debt 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 8:00 a.m. and before 9:00, local time at the consumer’s location.
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including:
(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
(2) The false representation of —
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to —
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this title.
(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal process.
(14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 603(f) of this Act.
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt, such as:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if —
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails 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.
Consumers have one year from the date of violation to file a lawsuit or their claim will be barred by the statute of limitations. A consumer can recover for his or her actual damages, statutory damages up to $1,000, plus reasonable attorneys’ fees and costs.