What is the FDCPA?
The FDCPA is a strong consumer protection law that explicitly prohibits certain debt collection methods. Originally, it provided that the Federal Trade Commission (FTC) would enforce the law, A 2010 amendment delegated enforcement to the Consumer Financial Protection Bureau. (CFPB)
Legislative History of Fair Debt Collection Practices Act
Driven by consumer complaints of abusive and unfair tactics by debt collectors, Congress enacted the Fair Debt Collection Practices Act (FDCPA) in 1977. During its hearings, it 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 youwith two ways to fight back against debt collectors that violate the FDCPA.
- 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 youand compensation for your actual damages such as loss of wages, medical bills, and emotional distress, caused by the debt collectors.
- You also can 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 collectormay 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 ifyou 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 youfail to challenge in writing the validity of the debt within 30 days after you receive written notice of the debt from the debt collector, the debt will be presumed to be valid.
The FDCPA states thatfailure to dispute the debt is not an admission of liability.
Summary of 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 and 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 its 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 the your location.
A debt collector may ask a third party to confirm your address if he identifies himself and, if requested, identifies his employer. A debt collector may not:
- Tell the third party that you owe a debt
- Communicate more than once with the third person
Communication with you, including your spouse, guardian, administrator, executor, and, for minors, parents
The debt collector shall not communicate with you if he:
- Uses a post card
- PlacingPlaces anything on an envelope that related to debt collection.
- Knows you have an attorney
- Meets at a place known to be inconvenient to you
- Contacts you before 8 a.m. or after p.m. your time
- Calls your place of employment after you have told debt collector not to call your employer
- Contacts you after you have told him 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 shall 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 to you
- Place your name on a list of consumers who allegedly refuse to pay debts or advertise your debt for sale, including blacklisting
- Repeatedly calling you or allowing your phone to ring to annoy and harass you
- Calling without disclosing the debt collectors identify
Protection from false or misleading information
A debt collector generally shall not make false or misleading representations about the debt collector. Specifically, the debt collector shall not:
- Falsely represent that he is an attorney or that he is affiliated with a State or Federal agency, including the use of 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 the debt collector’s status or employer
- Falsely represent the consequences of nonpayment
- Fail in the initial communication to identify himself 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 debt collector
Within five days after the initial communication with you, the debt collector must provide you with a written notice stating:
- Amount of debt
- Name of creditor
- Debt will be assumed valid unless you dispute its validity within 30 days
- If validity is disputed, then debt collector will mail you verification of debt
- If you request in writing, the debt collector will provide you with name and address of 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 lawsuitmust 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 he gives 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, he is liable to you in an amount equal to:
- Your actual damage caused by his 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, to speak with a representative directly and immediately call 844-685-9200 for a free, no obligation case evaluation. Our attorneys have experience in 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.