The Federal Debt Collection Practices Act (FDCPA): the Consumer Law Built to Protect

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Simply owing money does not necessarily mean that a debt collector can legally collect it from you. That you actually borrowed the money is not as important as HOW the debt collector is trying to collect it. When a debt collector harasses you, or threatens you, there are federal consumer laws that will protect you. One of these laws is the Federal Debt Collection Practices Act (FDCPA). When a debt collector violates this federal law, there are penalties that are imposed upon them. The FDCPA was designed to protect you, the consumer, from debt collector abuses. You do not have to accept harassing and threatening debt collectors because the FDCPA provides remedies and recourses against them when they do.

The FDCPA and When It Applies To You

The FDCPA is a federal law designed to protect consumers from debt collectors. The law details the actions that can be taken by a debt collector to legally collect a debt and, at the same time, explains the specific actions that are specifically prohibited.

The FDCPA applies under the following circumstances:

• When You Are a Consumer (not commercial). Simply put, a consumer is an individual. The FDCPA will not protect corporations or businesses.
• When the Debt is a Consumer Debt (for example, personal loans, debts incurred for your home and/or your family – any debt that is NOT business or commercial related). Examples of consumer debt are automobile loans, home mortgages, personal credit cards and medical bills. Basically, any debt that is not a debt or a loan belonging to a business is a consumer debt.
• When dealing with a “Debt Collector”. The FDCPA defines a Debt Collector as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.“ This includes anyone that regularly collects debts for an unrelated institution, such as an institution that hires another to collect a defaulted debt from a customer. In its simplest form, a debt collector collects a debt on behalf of another. Therefore, an original creditor (the person or entity that actually made the loan) is NOT a debt collector and therefore the FDCPA does not apply to them. It does, however, apply to anyone else who is trying to collect that same debt.

When Has the FDCPA Been Violated?

The FDCPA has several parts to it, but in general, if a debt collector takes any action against you that is prohibited by the FDCPA, such as an act that is unjust or disrespectful, they have violated the Act. If they lie to you or threaten you, they have violated the FDCPA. There are other actions that the debt collector can take that would be a violation. Unfortunately, there are too many examples to list them all, but here are a few.

Examples of FDCPA violations:

• When the debt collector calls but speaks to someone other than the debtor and lets them know that you have a debt that is outstanding. A debt collector cannot let anyone other than the debtor know that there is an outstanding debt exists. This includes family members, roommates, neighbors, workmates and employers. For this reason, they may not leave a recorded message that mentions the debt. They can call and speak to another person (one time), but only to ask for information about your whereabouts and how they can find you.

• When a debt collector calls you before 8:00am in the morning or after 9:00pm in the evening. Also, they cannot constantly call during this time period in a manner that is harassing.
• When a debt collector threatens you with legal action of any sort. Many consumers are not aware that debt collectors may not threaten you with legal action. For example, a debt collector cannot tell you that they will take you to court, that they will take your personal belongings away, that they will garnish your wages, or that you will go to jail, if you do not pay the debt collector the debt that is presumably owed. Furthermore, they can not pretend to be attorneys, when they are not.
• When a debt collector adds amounts to the debt that is not owed. A debt collector is prohibited from asking for an amount that is not owed. In other words, any penalty or interest that has been added to the debt must be part of the original loan agreement. If the original loan agreement that you signed authorizes an interest charge, late fees or other costs such as collection charges, then the debt collector may add it to the amount due. However, many debt collectors add their debt collection fees, when, in fact, the loan agreement does not authorize it.
• When a debt collector calls your place of employment after letting them know not to. A debt collector may not call your place of employment if you have let them know that you do not want them to call there or that your employer does not allow these types of calls to be made.
• When a debt collector calls or writes after letting them know not to. Further, they may not call or write you if you have let them know that you do not want to be called or written to. Although you may let them know this by telephone, it is much more effective to make this known in writing in such a way that you obtain proof that such request was made (such a s certified or return receipt) If they continue to call or write you after having made the request that it stop, the debt collector has violated the FDCPA.
• When a debt collector continues collection efforts after the debtor has requested that the debt be “verified”. If you request verification of the debt, they must stop all collection efforts until they have verified the debt. The verification must be some valid documentation from the Original Creditor, and not just a printout of your name, address and amount of the debt. It is common, however, for debt collectors to use these types of inadequate and insufficient verifications of debt. While these documents may have come form the Original Creditor, they do not comply with or qualify as a ‘verification of debt” that is required under the FDCPA.

As previously mentioned, there are too many examples of violations to cover them all here. For this very reason, it is important that you speak with an experienced Consumer Law attorney to explain and examine all the circumstances in detail in order to determine if there has been an actual violation committed.

The FDCPA Offers 4 Benefits and Protections To Consumers

1. If you want to file a claim against the debt collector for a violation under the FDCPA or want to defend yourself against a lawsuit filed against you by the debt collector, you are entitled to the reimbursement of all attorney’s fees and costs incurred.
2. If you suffer “actual damages”, the FDCPA requires that the debt collector reimburse you for these damages. An example of “actual damages” is when a debtor loses his or her job because the debt collector called the place of employment after being asked not to (or after making it known that the employer did not permit these types of calls).
3. The FDCPA imposes penalties of $1,000 for each violation. This is in addition to any actual damages that you may have incurred. In other words, the fact that a violation has occurred will mean that the debt collector must pay $1,000, period.  If you suffer damages because of this violation., that is payable separate and apart from the $1,000 penalty. And actual damages are not required in order for the $1,000 penalty to be imposed.
4. If you are successful in your claim against the debt collector and you have agreed to pay your attorney his fees, then – according to the FDCPA – the debt collector must pay them. If we go to trial, the court can impose those attorneys’ fees and costs upon the debt collector. Realize that court costs are not paid for at the end of the case, but rather they are paid at the beginning and throughout the case. Someone has to pay them. Most attorneys will pay these costs for you and get reimbursed for them at the end. Make certain that that you do not have to reimburse your attorney for fees or costs if you are not successful in your claim against the debt collector. You should only be responsible for fees and costs if you are successful in your claim. And because the debt collector is made to pay these fees and costs, you should not have to out-of-pocket them.

If you feel that you have been harassed or abused in any way by a debt collector, you are now able to determine whether or not you have a claim against them based on the protections afforded to you under the Federal Debt Collections Practices Act. Don’t take it lightly. Seek the advice of an experienced Consumer Law attorney and protect yourself using the very tools given to you to stop the Debt Collector from taking advantage of you.

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Kevin L. Deeb, Esquire

Kevin L. Deeb writes for Florida Law Talk, a family of websites that covers Florida’s current legal issues. He is an attorney with Florida Consumer Law Group, P.A. handling Consumer Law and Real Estate Law matters for clients in Florida. You may reach him at www.defendusnow.com or on Twitter at @FlaConsumer

Image may be NSFW.
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Image may be NSFW.
Clik here to view.