What is the Federal Debt Collection Practices Act (FDCPA)?
In the beginning of 2017, a reported 73% of United States citizens who died, passed away with some form of debt (credit, auto, mortgage, personal, or student). With such a large number of people living with debt, it is reasonable for people to want to understand their options because in reality, debt and finances are a daily part of our lives, and it can have so much determination on our individual quality of life.
So what is the FDCPA, and how can it help me?
The Federal Debt Collection Practices Act (FDCPA) was set in place to protect individuals from being harassed by debt collectors. Harassment in this case would include repeated, inconvenient, and frequent calls through which the debt collector aims to annoy, bully, or threaten an individual into making a payment. The FDCPA has laws to limit the frequency of phone calls a debt collector can make to ensure that no individual falls prey to unfair debt collection practices.
The FDCPA is enforced by the Federal Trade Commission (FTC) to ensure that collectors are not using abusive debt collection practices. A debt collector is an individual who is affiliated with a collection agency, a law group, or a company that buys debt off of debt collection agencies. The FDCPA does not protect against original creditors in each state, although there are some states, like California, that try to protect their citizens from the original creditors. The FDCPA aims to lay out explicit guidelines for fair debt collections practices, and avenues for those in debt to protect themselves against harassment, or false debt accusations. There is a system in place which allows those in debt to validate information given to them by the debt collectors to ensure the information is accurate and not fraudulent. There are also instances where individuals have a right to dispute the debt that they owe, which we will discuss later in this post. The FDCPA’s overall purpose is to protect all parties involved in a fair, and equal way.
Your Rights Under the FDCPA
While the Federal Debt Collection Practices Act intends to protect all involved parties, it is still important to know the full scope of your rights in case of an error on their part. Additionally, there is a whole industry of lawyers popping up to defend debt collectors, who spend their days trying to find loopholes to make you (the consumer) pay, regardless of any wrongdoing on the part of the debt collector. Having your own back in this situation, and doing the appropriate research will allow you to avoid falling into any traps.
It is sometimes advantageous to talk to them at least once to better understand the situation and know the exact debt(s) that they are calling to collect. Sometimes, it may even be a mistake that you are on their list, and one phone call would suffice to eliminate the problem. If however, you do actually owe the debt, but still think it is a mistake or you cannot pay it back, you do not have to endure endless phone calls and debt collectors parading themselves through your life. You can send them a notice to end all contact. This must be done via mail, and the only contact they are allowed to make is either to tell you that there will be no further contact, or to file a lawsuit. If they file a lawsuit to sue you for the amount owed, you will not want to ignore the lawsuit. You may try to handle it yourself, but you are entitled to an attorney. If you have hired an attorney, the debt collectors can no longer contact you directly, but must only contact your lawyer.
In order for the claim to be valid, the collector must send a written confirmation of the amount owed, and who the creditor is within the first five days of contacting you. They must also explain the process for you to follow if you believe it was sent in error. If you send the letter explaining why it is an error, the collector must not contact you again until they send proof of the amount owed.
Additionally, if you make a payment toward your debt, if you owe more than one creditor, you can tell the collector where to apply the money, and they must comply with your request. They especially cannot apply any amount paid to a debt that you have explicitly claimed that you do not owe.
If at this point they sue you for a debt that you are not paying, and refuse to accept responsibility for, the court can garnish your funds. Garnishing means that the court can tell the bank to withdraw funds from your account, or they can apply any income straight to the debt. This is legal, if the debt collectors win in court, however they can never garnish money from federal benefits such as social security, or veterans benefits.
Any time a debt collector calls, make sure they identify themselves with their name and their role as a debt collector, they announce who the original creditor is, they notify the consumer of the right to dispute this debt, and that they offer validation of the debt upon request. If they eventually file for a lawsuit, they must do it in accordance with FDCPA laws.
When is debt Collection Illegal?
Here we will examine a list of unfair and abusive debt collection practices that may be used in court as evidence of harassment.
- Hours of contact: Debt collectors may only contact you between 8am and 9pm unless you state otherwise. If you tell them that they are not allowed to call during work hours, or if you have a night shift, they may only call during the allotted times.
- Continued Communication: After the consumer sends written notice to cease all communication, debt collectors may not contact the consumer again other than to notify them of the cessation of contact, or that they will proceed with a lawsuit.
- Frequent calls with intent to annoy: calling over and over again which harasses the consumer.
- Contacting place of employment: Debt collectors may not call a consumer’s place of work if they have been directed not to.
- Contacting consumer, and not their attorney (if they have one)
- Misrepresentation or deceit: Regarding the debt, or the identity of the debt collector (posing as a law enforcement officer).
- Publicly publishing consumer’s name or address without their consent.
- Threatening legal action
- Aggressive or threatening language/ cursing
- Sharing information about your debt with third parties
- They cannot contact you by shaming you: For example, they cannot post anywhere, especially through mail that you are being pursued by debt collectors.
A consumer can provide each of the elements from the list above as evidence in court against a debt collector if they feel the standards set forth by the FDCPA were not met. Consumers should not dispose of any voicemail, email, mail correspondence in case the situation ever escalates to court.
The FDCPA will defend consumers who have the right to dispute any debt that you think is not legitimate. You do not have to suffer through repeated, and annoying phone calls and debt collectors, and you do not have to fall victim to abusive debt collection practices. You can also hire an attorney to handle your case who is an expert in the Fair Debt Collection Practices Act such as GM Law Firm. GM Law Firm has detailed some information about what your rights are, and what to look out for on their website.
Know the signs, now your rights under the Fair Debt Collection Practices Act, and know that you do not have to subject yourself to this kind of treatment.
