Debt Defense: Fair Debt Collection Practice Act (FDCPA)

Based upon a finding of “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” and that “existing laws and procedures for redressing these injuries are inadequate to protect consumers “ in 1978 Congress passed the Fair Debt Collection Practices Act (FDCPA) as part of Title VIII of the Consumer Credit Protection Act. The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.”

The law protects “consumers,” which is defined as any natural person obligated or allegedly obligated to pay any debt from the actions of “debt collectors.”  The definition of a debt collector is any person who uses any instrumentality of interstate commerce or the mail, while engaged in a business in which the principal purpose is the collection of debt, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.  A debt collector can include someone attempting to collect their own debts, however only if that entity uses a name other than its own so as to indicate that it is collecting or attempting to collect the debt for someone else.  Lastly, a debt collector includes any person who uses any instrumentality of interstate commerce or the mail while engaged in a business in which the principal purpose is the enforcement of “security interests.”

The term “debt collectors,” and therefore the FDCPA, does NOT apply to 1) any officer or employee of the actual creditor while, in the name of the creditor, collecting debts for that creditor, 2) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if that person acting as a debt collector does so only for the related or affiliated person and if the principal business of such person is not the collection of debts, 3) any officer or employee of the United States or any State to the extent that collecting or attempting to collect that debt is in the performance of his official duties, 4) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt, 5) any nonprofit organization which, at the request of a consumer, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors, and 6) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (1) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement, (2) concerns a debt which was originated by such person, (3) concerns a debt which was not in default at the time it was obtained by such person, or (4) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

Those definitions are extremely important when you begin to analyze and apply the law and actions that are prohibited by it.  The following describes the actions “debt collectors” are prohibited from doing:

TRYING TO LOCATE YOU
Debt collectors communicating with any person, other than you, for purposes of finding out where you are, MUST:

1. identify himself, state that he is confirming or correcting location information concerning your whereabouts, and, only if expressly requested, identify his employer;
2. NOT state that you owe any debt;
3. NOT communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
4. NOT communicate by post card;
5. NOT use any language or symbol on any envelope or in the contents of any communication effected by the mail that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; AND
6. after the debt collector knows you are represented by an attorney with regard to that debt and has knowledge of, or can readily ascertain, that attorney’s name and address, NOT communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to the communication from the debt collector.

COMMUNICATION WITH YOU
For debt collectors, without your prior consent given directly to the debt collector or the express permission of a judge who has jurisdiction over the matter, a debt collector may NOT communicate with you in connection with the collection of any debt in the following ways:

1. at any unusual time or place or a time or place known or which should be known to be inconvenient to you. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with you is after 8am and before 9pm, your local time.
2. if the debt collector knows you are 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 you; or
3. at your place of employment if the debt collector knows or has reason to know that your employer prohibits you from receiving such communication.

COMMUNICATING ABOUT THE DEBT
Without your prior consent given directly to the debt collector, or the express permission of a judge who has jurisdiction over the matter, or as is reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may NOT communicate, in connection with the collection of any debt, with any person other than:

1. you,
2. your attorney,
3. a consumer reporting agency if otherwise permitted by law,
4. the creditor,
5. the attorney of the creditor, or
6. the attorney of the debt collector.

NOTICE TO CEASE COMMUNICATION
If you notify a debt collector in writing that you refuse to pay a debt or that you wish the debt collector to cease further communication, the debt collector MAY NOT communicate further with you with respect to the debt, except to:

1. advise you that the debt collector’s further efforts are being terminated;
2. notify you that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by the debt collector or creditor; OR
3. where applicable, to notify you that the debt collector or creditor intends to invoke a specified remedy.

This section applies when you notify the debt collector by mail and when the notification is received.  Also, your spouse, parent (if you are a minor), guardian, executor, or administrator can make this request on your behalf.

NO HARASSMENT OR ABUSE
A debt collector may NOT engage in any conduct to harass, oppress, or abuse any person in connection with the collection of a debt. This includes but is not limited to:

1. the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person;
2. the use of obscene or profane language or other abusive language;
3. the publication of your name on a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency as specially defined;
4. the advertisement for sale of any debt to coerce payment of the debt;
5. calling repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;
6. calling without a meaningful disclosure of the caller’s identity.

NO FALSE OR MISLEADING REPRESENTATIONS
A debt collector may NOT use any false, deceptive, or misleading representation or means in connection with collecting a debt.  This includes but is not limited to:

1. The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof;
2. The false representation of:
   A) the character, amount, or legal status of any debt; or
   B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
3. The false representation or implication that any individual is an attorney or that any communication is from an attorney;
4. The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action;
5. The threat to take any action that cannot legally be taken or that is not intended to be taken;
6. The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause you to:
   A) lose any claim or defense to payment of the debt; or
   B) become subject to any practice prohibited by this Act.
7. The false representation or implication that you committed any crime or other conduct in order to disgrace you;
8. Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed;
9. The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval;
10. The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning you;
11. The failure to disclose in the initial written communication with you and, in addition, if the initial communication with you is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph does not apply to a formal pleading made in connection with a legal action;
12. The false representation or implication that accounts have been turned over to innocent purchasers for value;
13. The false representation or implication that documents are legal process (papers used to initiate a lawsuit);
14. The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization;
15. The false representation or implication that legal process documents are not what they are or do not require action by you; and
16. The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as specially defined in the Act.

UNFAIR PRACTICES
A debt collector may NOT use unfair or unconscionable means to collect or attempt to collect any debt. This includes but is not limited to:

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.
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.
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.
4. Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
5. Causing charges to be made to any person for communications by concealment of the true propose of the communication. This includes charges for collect telephone calls.
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.
7. Communicating with you regarding a debt by post card.
8. Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with you by use of the mail, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

VALIDATION OF DEBT
Within five days after the initial communication with you in connection with the collection of any debt, unless the following information is contained in the initial communication or you have paid the debt, the debt collector MUST send you a written notice containing the following information:

1. the amount of the debt;
2. the name of the creditor to whom the debt is owed;
3. a statement that unless you, within thirty days after receipt of the notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
4. a statement that if you notify the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against you and a copy of that verification or judgment will be mailed to you by the debt collector; and
5. a statement that, upon your written request within the thirty-day period, the debt collector will provide you with the name and address of the original creditor, if different from the current creditor.

If you notify the debt collector in writing within the thirty-day period described above that the debt, or any portion thereof, is disputed, or that you request the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to you by the debt collector.

While we strongly recommend you hire a lawyer to dispute a debt, despite the language in the debt collector’s initial contact, your failure to dispute the validity within 30 days of the initial contact MAY NOT be construed in any way as an admission of liability in any legal proceeding.

MULTIPLE DEBTS
If you owe multiple debts and make any single payment to any debt collector with respect to those debts, that debt collector may not apply your payment to any debt which you dispute.  Also, where applicable, the debt collector must apply your payment in accordance with your directions.

LAWSUITS BY DEBT COLLECTORS
Any debt collector who brings a lawsuit on a debt against you MUST:

1. in the case of an action to enforce an interest in real property securing your obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
2. in the case of an action not for real property, bring such action only in the judicial district where:
   A) you signed the contract being sued on; or
   B) where you reside at the commencement of the action.

CIVIL LIABILITY
Any debt collector who fails to comply with any provision of the act is liable to you for:

1. any actual damage sustained;
2. A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
   B) in the case of a class action,
   (i) such amount for each named plaintiff as could be recovered under, and
   (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1% of the net worth of the debt collector; and
3. in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.
4. If the court finds the action was brought in bad faith, and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.

In determining the amount of liability in any action, the court must also consider the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.  Also, a debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

It is also important to note that nothing in the FDCPA can stop, limit, or affect any person subject to its provisions from also complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of the FDCPA, and then only to the extent of the inconsistency. The FDCPA clearly states, “a State law is not inconsistent with this title if the protection such law affords any consumer is greater than the protection provided by this title.”

If you or anyone you know is being pursued by a debt collector or creditor and have any questions about how to protect yourself and fight back, please contact us today!  Let the lawyers and staff at Rosen & Rosen serve you.

We are a debt relief agency.  In addition to other legal services, we help clients file for bankruptcy relief under the Bankruptcy Code.

Debt Defense
Fair Credit Reporting Act (FCRA) & Fair and Accurate Credit Transactions Act (FACTA)
Florida Consumer Collection Practices Act (FCCPA)
Fair Debt Collection Practice Act (FDCPA)
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA)