Fair Debt Collection
The Fair Debt Collection Practices Act, or FDCPA, sets limits on the manners and methods for debt collectors to communicate with alleged debtors and even third parties in section “c.” This law speaks to issues like who can be called, where and when, and how to make the calls stop.
First, the act prohibits communication at any unusual times or places, or at times or places the collector should reasonably know are inconvenient. Examples of presumptive wrong times include calls before 8 am or after 9 pm where you live, and a presumptive wrong place to call can include your place of employment. Other wrong times and places may include holidays, while you are seeking medical care or while a love one is hospitalized, and numerous other situations like these.
Likewise, the law limits the situations where the debt collector can communicate with third parties about your debt. For example, a debt collector cannot contact your bank or employer about an alleged debt, unless he first received permission from a court of law to do so. An instance of this could be where the debt collector already sued you and already got a judgment entered against you, and he is contacting your bank or employer to garnish your wages or levy your bank account.
Finally, the FDCPA sets forth simple situations where the debt collector has to stop communicating with you in general. You can just write the collector a letter, and tell him that you either refuse to pay the debt, or that you just don’t want to hear from him again, and the collector will pretty much have to stop communicating with you completely. You can also retain an FDCPA attorney, and once the collector knows you are represented, he also must immediately cease communicating with you.
One last point about the FDCPA: it is not a law you just guess as to whether your rights were violated, instead make it a habit to have all your collection accounts reviewed by an experienced Fair Debt attorney. Although a lot of FDCPA’s violations provisions are things the average consumer might realize, the FDCPAs technical requirements—the things most non-lawyer consumers don’t know—that are most frequently violated. And if your FDCPA rights are violated, the debt collector can be penalized and have to pay you a monetary award, even where you suffered no harm. Congress also decided that the debt collector would have to pay your attorney fees, meaning you can usually enforce your FDCPA rights at no cost to you.
But the analysis isn’t just about the FDCPA, the collector or someone else in the account chain may have violated other rights of yours; for example, the they could be using a dialer to ring your phone in violation of the TELEPHONE CONSUMER PROTECTION ACT or the account could be improperly credit reported in violation of the FAIR CREDIT REPORTING ACT. Evidence such as 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, are powerful tools in the fight against debt collection and help you to level the playing field.
15 USC 1692c
(a) Communication with the consumer generally
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location;
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
(3) at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.
Analysis
A debt collector may not call you at any time, or on any particular day, if he has credible information (from you or elsewhere) that the call is inconvenient. In most cases, a first-time call on a “no collection call day,” does not violate the FDCPA. But, once you inform collectors of your off-limits days, a second call on your “no call” day can be a violation.
This subsection also prevents a debt collector from communicating with you once he or she knows you are represented by an attorney in connection with the debt. Debt collectors who know you are represented by counsel with respect to one debt are not required to assume similar representation on your other debts; however, if you notify debt collectors that your attorney has been retained to represent you for all other debts placed with them, they must deal only with that attorney.
Finally, this subsection limits collection calls to you at work and debt collectors may not call your place of employment if they have reason to know your employer forbids such communication (e.g., you or your employer has verbally informed them).
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
Analysis
Contact with third parties about your debt is largely prohibited except for certain limited instances. These may include where you consent, where the collector is trying to obtain location information or has a court order, “or as reasonably necessary to effectuate a post-judgment judicial remedy.”
As to your consent, sometimes a debtor will ask the collector call a third party to arrange for payment. If you do that, then the debt collector may normally presume your consent. However, consent may not be inferred from your inaction.
With regard to location information, debt collectors may not call third parties under the pretense of gaining information already in their possession (i.e., they already know how to find you and are calling third parties anyway). Further, debt collectors may not leave voice mails or send written messages that are easily accessible to third parties (for example, computerized billing statements that can be seen on the envelope itself).
As to actions “reasonably necessary to effectuate a post-judgment judicial remedy,” this means communications necessary for execution or enforcement of the remedy, for example, a notice to your employer to garnish your wages.
Finally, the collector is allowed to communicate with third parties such as your attorney, a credit bureau, the creditor and/or its attorney. Such communications between these parties (even if the attorney is also a debt collector) are not forbidden.
(c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—
(1) to advise the consumer that the debt collector’s further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be complete upon receipt.
Analysis
For purposes of this section, the term “communication” is defined broadly, and will include phone calls and voice messages, as well as emails and text messages. So if you send a written cease and desist in response to any of these contacts, the collector must leave you alone, except for the three statutory exceptions outlined above.
(d) “Consumer” defined
For the purpose of this section, the term “consumer” includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.
Analysis
Collectors can legally talk to your spouse (if legally married), even if the debt existed prior to the marriage or the spouse is not on the credit contract. They can also legally discuss details of debts in the case of a minors (less than 18 years old), and they can discuss the issue with a guardian or executor.
(Pub. L. 90–321, title VIII, § 805, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 876.)