Your Rights Under the FDCPA
When Debt Collectors Sue
April 2, 2013
Did you know:
1. The Fair Debt Collection Practices Act (“FDCPA”) was enacted because congress found “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors,” and wanted to institute an act to help disadvantaged consumers. 15 USC 1692.
2. Within 5 days of their initial communication with you, a debt collector must send you a written notice notifying you of your right to dispute the debt or request documentation validating the existence of the “alleged” debt (unless already contained in the initial communication or you paid the debt). 15 USC 1692g. More specifically, the notice must contain:
A. the amount of the debt;
B. the name of the creditor to whom the debt is owed (this does not have to be your original creditor (e.g. Chase or Bank of America) but the company to whom the original creditor sold your debt);
C. a statement notifying you, you have 30 days after receipt of the notice to dispute the debt or it will be assumed valid by the debt collector;
D. a statement notifying you that if you dispute the debt within the 30 day period, the debt collector must obtain and mail you verification of the debt;
E. a statement notifying you that the debt collector will provide you with the name and address of the original creditor, if different from the current creditor, if you request it during the 30 day period.
3. If you dispute the debt to the debt collector, in writing, within 30 days of receiving that notice, the debt collector must stop all collection activities until it mails you a copy of the validation.
4. A debt collector cannot try to embarrass you by discussing your debt with a third party without your consent. The only person a debt collector can actually discuss your debt with is: you, your spouse, your parent (if you’re a minor), your guardian, your executor or administrator, your attorney, your creditor, or the debt collector’s attorney. 15 USC 1692c. Communications with anyone else (other than to obtain your contact information) is a violation of the FDCPA.
5. A debt collector cannot contact you before 8 am or after 9 pm without your consent. 15 USC 1692(c)(a)(1).
6. A debt collector cannot contact you directly if it knows you are represented by an attorney with respect to that debt and has your attorney’s name and address. 15 USC 1692(c)(a)(2).
7. A debt collector cannot contact you at work if it knows your employer (e.g. you tell them your employer) prohibits you from receiving calls at work. 15 USC 1692(c)(a)(3).
8. A debt collector cannot harass you in connection with the collection of a debt. In other words, a debt collector cannot threaten to harm you, use obscene or profane language, or call you repeatedly or continuously with the intent of annoying you (intent can be inferred by the debt collectors’ actions, including number and pattern of calls in a day, the number of messages left, interactions with the collector, etc.). 15 USC 1692d. In Louisiana, conduct that could be harassing includes calling between 3 and 6 times a day.
9. A debt collector cannot use false, misleading or deceptive means in connection with the collection of your debt. Some common examples of false and misleading means include:
A. misrepresenting the amount of money owed; 15 USC 1692e(2)
B. claiming to be an attorney or that a communication is from an attorney when it is not; 15 USC 1692e(3)
C. representing that nonpayment of a debt will result in arrest, imprisonment, garnishment, attachment, or sale of any property or wages unless that action is lawful and they really intend to take that action; 15 USC 1692e(4)
D. threatening to take legal action that cannot be taken or is not really intended to be taken; 15 USC 1692e(5)
E. communicating or threatening to communicate information which is known or should be known to be false, including failing to communicate that you disputed the debt (e.g. credit reporting your account without notifying the credit reporting agency(ies) the debt is disputed); 15 USC 1692e(8)
F. failing to provide a “mini-miranda” and notify you, in your intial written or oral communication that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose” and failing “to disclose in subsequent communications that the communication is from a debt collector.” 15 USC 1692e(11).
10. A debt collector cannot use unfair or unconscionable means to collect a debt. Examples include:
A. collecting interest, fees, charges or expense that are not authorized by law or your contract with the original creditor; 15 USC 1692f(1)
B. communicating with you regarding your debt by post card; 15 USC 1692f(7).
For more information go to http://www.ftc.gov/os/statutes/fdcpa/fdcpact.shtm for the full text.
