What is the FDCPA?
The Fair Debt Collection Practices Act (FDCPA) is a consumer protection law that explicitly prohibits certain debt collection methods. Originally, the Federal Trade Commission (FTC) enforced the law, but a 2010 amendment delegated enforcement to the Consumer Financial Protection Bureau (CFPB).
Legislative History of Fair Debt Collection Practices Act
Motivated by consumer complaints of abusive and unfair tactics by debt collectors, Congress enacted the Fair Debt Collection Practices Act in 1977. During the process Congress heard evidence that these practices caused personal bankruptcies, marital instability, employment loss, and loss of privacy.
Consumer Highlights in the Fair Debt Collection Practices Act
The FDCPA provides you with two ways to fight back against debt collectors that violate the Act.
- Because the law provides that your attorney fees may be shifted to the debt collector, you can hire a consumer protection lawyer without cost. The lawyer will seek statutory damages of $1,000 for you, as well as compensation for your actual damages such as loss of wages, medical bills, and emotional distress caused by the debt collectors.
- You can also file a complaint with the CFPB. If it believes that the debt collector violated the law, the CFPB may bring an enforcement action against the debt collector. If successful, the debt collector may be ordered to cease the illegal activity, pay a fine, pay restitution, and have its assets seized.
The FDCPA provides that you can complain about illegal debt collectors even if you owe the debt.
The FDCPA only applies to your debts for goods or services for primarily personal or family purposes, not to business debts.
The FDCPA requires you to file a complaint within one year after the violation occurs.
The FDCPA requires you to act to trigger full protection. For example, if you fail to challenge in writing the validity of the debt within 30 days after you receive written notice from the debt collector, the debt will be presumed valid.
The FDCPA states that failure to dispute the debt is not an admission of liability.
Summary of the Fair Debt Collection Practices Act
Definition of debt collectors
Debt collectors include those in the business of collecting your debts, including attorneys, who use such interstate devices as phones, internet, and mail.
Debt collectors do not include those who create a debt by providing you credit, such as a bank, debt collector’s officers and employees, or state or federal employees.
Debt collectors that buy debts for their own account are not debt collectors under the FDCPA definition pursuant to a June 2017 ruling by the U.S. Supreme Court in Henson v Santander.
Acquisition of information about your location
A debt collector may ask a third party to confirm your address if they identify themselves and, if requested, identify their employer. A debt collector may not:
- Tell the third party that you owe a debt
- Communicate more than once with the third party
Communication with you, as well as your spouse, guardian, administrator, executor and, for minors, parents
The debt collector shall not communicate with you if they:
- Use a post card
- Place anything on the envelope related to debt collection
- Know you have an attorney
- Suggest to meet at a place known to be inconvenient for you
- Contact you before 8 a.m. or after p.m. (in your time zone)
- Call your place of employment after you have told them not to
- Contact you after you have told them in writing not to communicate with you, except to provide certain notices
The debt collector may not contact third parties without prior consent except as provided by law.
Protection from harassment or abuse
A debt collector generally may not harass or abuse you. Specifically, the debt collector shall not:
- Use threats of violence or other criminal means to harm you in any way
- Use profane or abusive language towards you
- Place your name on a list of consumers who allegedly refuse to pay debts or advertise your debt for sale, including blacklisting
- Repeatedly call you or allow your phone to ring incessantly in order to annoy and harass you
- Call without disclosing their identify
Protection from false or misleading information
A debt collector generally shall not make false or misleading representations about themselves. Specifically, the debt collector shall not:
- Falsely represent that they are an attorney or that they are affiliated with a state or federal agency, including through use of a badge or uniform
- Falsely represent the type, amount, or legal status of the debt
- Falsely represent that nonpayment will result in arrest or imprisonment
- Falsely represent that nonpayment will result in seizure, sale or attachment of property, or garnishment of wages
- Falsely represent their status or employer
- Falsely represent the consequences of nonpayment
- Fail in the initial communication to identify themselves as a debt collector and to state that all information will be used to collect the debt
- Falsely represent the true purpose of any documents
Protection from unfair practices
A debt collector generally shall not use unfair or unconscionable means to collect the debt. Specifically, the debt collector shall not:
- Collect an amount not authorized by agreement or law
- Take a check postdated by more than five days without providing written notice three days prior to deposit
- Solicit a postdated check to threaten criminal prosecution
- Deposit or threaten to deposit a postdated check prior to the date on the check
- Threaten to take property by nonjudicial action without the legal right or the intent to possess the property
Notices required by the debt collector
Within five days after initial communication with you, the debt collector must provide you with a written notice stating:
- The amount of debt
- The name of the creditor
- That the debt will be assumed valid unless you dispute its validity within 30 days
- That if validity is disputed, the debt collector will mail you verification of the debt
- That if you request it in writing, the debt collector will provide you with the name and address of the original creditor
If you dispute the debt, collection must cease until you receive the name and address of the original creditor.
If you owe multiple debts you may make a payment on one of those debts. The debt collector must apply the payment to the debt you specified. He may not apply this payment to a disputed debt.
Legal actions by debt collectors
A lawsuit to enforce an interest in real property must be filed in the judicial district where the property is located.
Any other lawsuit must be filed either in the judicial district of your residence or where you signed the contract sued upon.
Nothing in the FDCPA authorizes the commencement of legal action by debt collectors.
Furnishing certain deceptive forms
A debt collector violates the FDCPA if they give you a form that misrepresents that someone other than the creditor is participating in the collection of the debt.
Civil liability of debt collector to you
If a debt collector violated the FDCPA, they are liable to you in an amount equal to:
- Your actual damage caused by their illegal acts
- Additional damages not to exceed $1,000 awarded by the court.
In addition, if successful, the court will award the costs of the action and reasonable attorney’s fees as determined by the court.
If you are participating in a class action, in addition to these damages you are entitled to an amount the court allows for all members of the class not to exceed the lesser of $500,000 or one percent of the debt collector’s net worth.
You can sue in state or federal court.
Relation to state laws
Congress clearly wants the FDCPA to harmonize with state consumer protection laws. It specifically provides that debt collectors remain subject to all state laws unless they are inconsistent with the FDCPA. This inconsistency exists only if you are less protected by the state law.
If a debt collector has been hounding you, call one of our representatives on 844-685-9200 for a free, no obligation case evaluation. Our attorneys have experience fighting debt collectors and standing up for consumers. If a debt buyer has violated the Fair Debt Collection Practices Act, you’re entitled to file suit in federal court, and could be awarded up to $1,000 and other damages.