FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. 1692
By Celia Hastings, Attorney at Law, May 2013
State and federal statutes in every jurisdiction protect consumers from issues related to credit reporting and debt collection. The federal Fair Debt Collection Practices Act (commonly referred to as FDCPA) offers nationwide protection from debt collection agents trying to collect consumer debt, covering debts for personal, family or household purposes. Business debt collection is not covered by the FDCPA. The FDCPA applies only to debt collection agents, not to debt collection efforts made by the original creditor. Debt collection agents may be individuals or companies, and include attorneys. The Act prohibits deceptive, excessive, outrageous and threatening contacts with consumers by collection agents.
A debt collector may not communicate directly with a consumer who is represented by an attorney if the debt collector has been advised of the representation. “Consumer” includes a spouse and parent if the consumer is a minor. Prohibited collection behavior generally includes calls to the consumer before 8:00 am and after 9:00pm, calls to the consumer’s workplace if the collection agent has been advised the consumer cannot receive calls at work, and communication by the collection agent about the debt with third parties.
Abusive and harassing conduct by a collection agent is prohibited. It is defined in 15 U.S.C. 1692(d), and includes the use or threat of violence, the use of obscene language, and calling repeatedly or continuously with the intent to annoy, abuse, or harass the person who is being called. False or misleading representations by collection agents are also prohibited, and include false representation or implication that the debt collector is affiliated with the United States, any individual state, or the use of any badge or uniform. The character, amount or legal status of any debt may not be falsely represented, nor may the consumer be threatened with arrest.
There is only a one year statute of limitations on an FDCPA claim, meaning suit must be filed before the first anniversary of any communication violating the Act. Violations of the provisions of the Act subject debt collectors to any actual damage suffered by the consumer and additional damages up to a limit of $1,000 per violation of the Act. The cost of the action against the debt collector and the consumer’s reasonable attorney fees may also be awarded.
Unfortunately, there has been widespread use of outrageous collection efforts by untraceable and unreachable collection agents insisting on internet or ACH payments from consumers’ bank accounts, particularly among “payday loan” businesses. Many of the collection agents for these debts are not located in the United States; indeed, many of the “payday loan” agencies and internet loan companies themselves are not located in the United States. These collection agents call persistently at all hours, lie about who they are and quite often claim to be law enforcement agents, threaten jail if the debt isn’t paid, threaten to obtain an arrest warrant for the consumer’s failure to pay the debt. They often balk at giving a call back number, and NEVER give an address because that would help you find and sue them for violations of the FDCPA! Many consumers who are unaware of the protections afforded by the FDCPA end up paying debts that were not even owed by them because they are frightened by the aggressive tactics of the debt collectors and believe their lies.
If you have been harassed or mistreated by a collection agent you should contact an attorney to see if you may have an action under the Fair Debt Collection Practices Act or other statutes.