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Consumer Rights under the Fair Debt Collection Practices Act (FDCPA)

Fair Credit Reporting, Fair Debt Collection, Uncategorized

Many of us have debt: credit card debt, a car loan, a mortgage or medical bills.  Many of us know what it is like to fall behind on payments toward those debts.  But what many of us do not know is that we have rights under the Fair Debt Collection Practices Act (FDCPA) that can protect us from harassing, threatening, and illegal behavior by debt collectors.  The FDCPA was enacted in 1977, and the Federal Trade Commission together with the Consumer Financial Protection Bureau (CFPB) work to enforce and implement its provisions.  The Act applies to consumer debt–personal credit cards, student loans, and medical debts.  (Business debts are not subject to the FDCPA.)

Before discussing the basic protections provided by the FDCPA, it is important to have a clear understanding of what debt collectors are and how they function.  Debt collectors are companies hired on a commission basis by credit card issuers and banks to collect on past-due accounts.  Debt collectors may also purchase bad credit card and other loan debt outright from financial institutions and other lenders.  These debt buyers own the debt, and the right to collect the full amount of the outstanding debt.

The initial contact between a collector and a debtor must include what is known as a “mini-Miranda” disclosure (alluding to the rights told to suspects when arrested, known as Miranda rights).  Any oral or written communication must include language that the “communication is an attempt to collect a debt and any information obtained will be used for that purpose” (i.e. the “mini-Miranda”.)   All contact after the first contact must disclose that the next call or letter is coming from a “debt collector”.  This is true, in most cases, even if the letter was sent by an attorney.  An attorney must still disclose when they are acting as a debt collector.

Within 5 days of initial contact, a debt collector must provide in writing: (1) the amount of the debt; (2) the name of the creditor; (3) a notice that unless the consumer disputes the validity of the debt within 30 days, the debt will be considered valid; and (4) that the consumer can request verification.  All collection activities must cease during the validation process.  The collector cannot take any action during the first 30 days that overshadows the consumer’s right to dispute the debt.  If the debt collector does not provide the original creditor’s identity, the collection must cease.

After the initial contact between the debt collector and the debtor, the FDCPA continues to protect the debtor from overreaching, harassing, and illegal collection activities.  The behaviors by debt collectors most complained about are listed below:

  1.  Debt collector (DC) calling repeatedly to annoy and harass
  2.  DC trying to collect more than the debt owed
  3.  Falsely threatens illegal or unintended act
  4.  Failure to send written notice of debt
  5.  DC threatens dire consequences (arrest, property seizure)
  6.  DC fails to identify as debt collector
  7.  DC calls at work after being told not to
  8.  DC uses abusive and/or obscene language on phone
  9.  The debt is revealed to a third party
  10. DC fails to verify disputed debt
  11. DC collects unauthorized fees, interest, or expenses in addition to debt
  12. Calls before 8am and after 9pm
  13. Ignoring cease and desist communications
  14. Repeated calls to third party
  15. Threats of violence

Excerpt annual FTC report to CFPB, Feb. 21, 2014, Appendix C.

Several of the practices of debt collectors receiving the most complaints have to do with confidentiality.  Debts are private matters; not only is revelation to third parties a violation of the FDCPA, but communications that identify the sender as a debt collector or allow the contents to be read (as with postcards) are also violations.  Another important fact for debtors to know is that debts that are beyond their statute of limitations cannot be collected.

If you think that a debt collector has violated the FDCPA in attempting to collect a debt from you, fill out our FREE CASE EVALUATION FORM at www.letsbelegal.com Do not hesitate to contact Mary Higgins, Esquire.  You have only one year from the date the violation occurred to sue.  You can recover $1,000, plus damages for the actual losses incurred, court costs and your attorney fees.  (This article is for informational purposes only and should not be relied upon for legal advice.  Your case should be reviewed by an attorney to determine the proper legal advice for your situation.)

Mary Higgins Delaware Attorney

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