Fair Debt Collection
One of Congress’ primary purposes when enacting the Fair Debt Collection Practices Act, or FDCPA, was to prohibit debt collectors from engaging in unfair practices when collecting a debt. This is a broad concept which encompasses many different behaviors, some of which the average consumer might even realize. But many of these practices prohibited under section “f” are technical violations implied from the section’s “catch all,” and these technicalities are actually where the section’s most frequent violations occur.
One obvious unfair practice the FDPA outlaws is the attempt to or actual collection of interest, fees, charges, or other expenses in addition to the debt itself, unless those amounts are expressly authorized by the contract or permitted by law. This occurs where you may not owe as much as they say you owe, even if you still owe something.
Another less obvious prohibited method revolves around post-dated payment. Not only can’t a collector threaten to run a payment early, but they must also remind you they intend to deposit your post-dated check between three and ten days prior to deposit.
Similarly, collectors can’t dispossess you of your property, for example house, vehicle, or rent to own products, unless they have the right through an enforceable security interest, and can’t even threaten to if they don’t really intend to do so or where the property is exempt by law.
So anytime you hear from a debt collector or see one on your credit report, have the collection account reviewed by an experienced Fair Debt attorney, your money is too important to just guess as to whether your rights have been violated. And the FDCPA not only protects you from debt collectors violating your rights, but it also requires the debt collector be penalized and have to pay you a monetary award, even where you suffer no harm. The debt collector also has to pay your attorney fees, meaning you can usually enforce your FDCPA rights at no cost to you.
And even if the FDCPA doesn’t apply or wasn’t violated for one reason for another, the collector or someone else in the account chain may have violated other rights of yours, for example, the account could be improperly credit reported in violation of the FAIR CREDIT REPORTING ACT or they could have improperly disclosed or conditioned credit in violation of the TRUTH IN LENDING ACT. Things like collection letters, collection voice mails, collection call logs, and detailed notes of conversations with collectors, as well as credit report entries showing collector pulls and reporting, can each form powerful evidence in the fight against debt collection and help you to level the playing field.
15 USC 1692f
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
1692f(1)
The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
Analysis
“Amount” includes the debt, as well as any alleged incidental charges such as collection charges, interest, service charges, late fees, and other “bad debt charges.” A charge may be permissible under the contract still illegal under state law.
1692f(2)
The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
Analysis
The purpose to this subsection is to collectors give consumers timely notice of their upcoming post-dated payment, thereby avoiding creating new debts (e.g., NSF fees) while paying other old debts.
1692f(3)
The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
1692f(4)
Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
Analysis
Unethical collectors cash checks and withdraw funds early. Some have been known to withdraw the same amount of funds twice even though they were only authorized a one-time withdrawal. Assuming your overdrawn account is the result of collectors cashing your post-dated checks too early, or cashing the same check twice, contact your bank immediately and gather all the facts. If they violated any banking procedures lodge a complaint with your bank immediately and ask that they restore your funds and any overdraft charges associated with this situation.
1692f(5)
Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
Analysis
A debt collector who conceals his purpose in calling likely also violates section e(11), which requires the debt collector to disclose his purpose in most communications.
1692f(6)
Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
Analysis
This subsection is where the FDCPA regulate parties whose principal business is enforcing security interests only, and if such businesses do not otherwise fall within the FDCPA’s definition of debt collector, they are subject only to this provision and not to the rest of the statute.
1692f(7)
Communicating with a consumer regarding a debt by post card.
1692f(8)
Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
Analysis
Debt collection envelopes are prohibited from showing anything other than the collector’s address in a written communication to the consumer, except that the debt collector may use a business name that does not indicate it is in the debt collection business. The collector may not put on an envelope any business name with “debt” or “collector” in it, or any other name or symbol that indicates it is in the debt collection business. A debt collector does not violate this section by using an envelope printed with other words or notations that do not suggest the purpose of the communication, for example, “personal” or “confidential,” but such terms may create a false sense of urgency to the communication and otherwise be in violation of the Act. Finally, debt collector may not use a transparent window envelope which reveals language or symbols indicating his debt collection business, because it is the equivalent of putting information on an envelope.
(Pub. L. 90–321, title VIII, § 808, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 879.)