The Fair Debt Collection Practices Act provides rules debt collectors must follow when attempting to collect a debt. If you have been abused by a debt collector in one of the ways listed below, contact Edelman, Combs, Latturner & Goodwin, LLC, for a free consultation. We have successfully sued dozens of collection agencies to stop debt collection abuse and have obtained monetary damages for many of our clients.
Even if you have no actual injuries resulting from the debt collector's abusive conduct, the Fair Debt Collections Practices Act allows you to recover up to $1000 in damages. Depending on the situation, you may also be able to obtain additional compensation for any actual injuries.
Who Is a Debt Collector?
A debt collector is somebody who is trying to collect a debt for another party, or somebody who purchased a delinquent debt. If somebody is trying to collect their own debt, the Fair Debt Collection Practices Act does not apply. For example, if you got a loan from Shark Finance Company and a Shark Finance Company employee is calling you about the debt, the Fair Debt Collection Practices Act does not apply. However, you do have some protections under state law. On the other hand, if Shark Finance Company hires the Barracuda Collection Agency to collect the debt, the Fair Debt Collection Practices Act would apply. Also, if Shark Finance sells the debt to Hammerhead Assets when it is already in default, the Fair Debt Collection Practices Act would apply.
Timing of Collection Calls
A debt collector cannot contact you at inconvenient times or in inconvenient places. The law presumes that calls between 8 a.m. and 9 p.m. local time are convenient (You need to inform them if you want them to call at other times, or communicate only in writing).
Calling You at Work
Debt collectors cannot contact you at work if they should know that your employer does not permit it. If you are not allowed to take calls at work, or if you do not want them to contact you at work, tell the debt collector that you do not want them to call you at your work number. Follow up with a certified letter to the debt collector asking them not to contact you at your work number. If they continue to contact you in this manner after you have asked them to stop, contact a consumer protection lawyer at Edelman, Combs, Latturner & Goodwin, LLC.
Calling You After You Have Asked Them to Stop or Told Them You Have an Attorney
A debt collector cannot contact you at all if you have an attorney and the debt collector knows you have retained the services of an attorney (you need to tell them, or have your attorney tell them).
Debt collectors also cannot contact you if you ask them in writing, or inform them that you refuse to pay. If you do want a debt collector to call or write you with more information about a particular debt, tell them and send them a certified letter explaining this. Please note, if you really do owe the debt and have no defenses, asking them to stop contacting you might result in them filing a lawsuit to collect the debt and/or reporting the debt to the credit bureaus if they have not already done so (and the debt is not too old).
Harassing or Misleading Conduct
- A debt collector cannot threaten you with violence.
- A debt collector cannot threaten to harm the person, reputation or property of any person.
- A debt collector cannot use foul or abusive language or call you names.
- A debt collector cannot contact you without identifying himself or herself.
- A debt collector cannot accept a postdated check and post it prior to its date.
- A debt collector cannot place repetitive and harassing phone calls.
- A debt collector cannot make a false, deceptive or misleading representation.
Common misrepresentations made by debt collectors include:
- Inflating the amount of the debt
- Stating that you must make immediate payment to avoid being sued
- Pretending to be an attorney or law office
- Pretending to be a police officer, investigator or similar official
- Threatening you with arrest, imprisonment or prosecution for a crime unless the law allows this and the debt collector intends to do so. (Generally, people are not subject to arrest for not paying an ordinary debt. Some states allow arrest if the debt collector has a judgment and you refuse to show up in court to answer questions about your assets and income, but this requires a court order.)
- Claiming that nonpayment of a debt is a crime
- Threatening to seize or garnish your wages or property (unless the action is legal and they intend to carry it out within the time stated)
- Threatening any other action that cannot legally be taken or that is not intended to be taken
- Claiming that a transfer of the debt makes fraud or other misconduct by the seller irrelevant (generally not true)
- Using false names to obtain information from you
In addition, debt collectors cannot add new charges to the debt (interest, attorney's fees, collection costs, etc.) unless (1) they are allowed to by contract and the contract is legal (e.g. a lawful interest rate) or (2) they are allowed to by law (court costs).
Telling Other People About Your Situation
- A debt collector cannot tell your employer, neighbor, credit references or friends that you owe a debt.
- A debt collector cannot threaten to contact your employer, neighbor, credit references or friends.
Credit Reporting Issues
- A debt collector cannot put a disputed debt on your credit report without stating that is disputed.
- A debt collector cannot report a debt to a credit bureau that has been discharged in bankruptcy without noting that it has been discharged and that the current balance is zero.
- A debt collector cannot threaten to report a debt to a credit bureau if the debt is too old to be reported (generally 7 years since the date of last activity).
Old Debts and Debts Discharged in Bankruptcy
- A debt collector cannot attempt to collect a debt that has been discharged in bankruptcy.
- A debt collector cannot threaten to sue or actually sue on a debt barred by the statute of limitations (in Illinois, most credit cards are governed by a five year statute; retail installment contracts are governed by a four year statute). The statute runs from date you stopped paying and may be restarted by a payment.
- A debt collector can only take legal action in the county where you live or in the county where you signed the contract sued upon. If the action seeks to enforce an interest in real property securing your obligation, it may be filed in the county in which the real property is located.
Written Notice About the Debt
Unless you pay the debt, a debt collector is required to send you a written notice of your rights within 5 days of their first contact. The notice must state:
- The amount of the debt
- The name of the party to whom the debt is owed
- That unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector (not by courts or anyone else)
- A statement that if the consumer notifies 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 the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector
- A statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor
What Should I Do if I am the Victim of Debt Collection Abuse?
Save copies of all letters to and from the debt collector. We also recommend making notes about each incident, including the date, time and name of the collector who made the calls. If they have not identified themselves, write down their phone number if you have caller ID. If they have left abusive messages on your answering machine or voice mail, save the messages.
Many states, such as Illinois, do not permit you to tape calls unless the other party agrees. Consult with an attorney in your own state before trying to tape collection calls.
If you are the victim of one of the above practices, contact a consumer protection attorney at Edelman, Combs, Latturner & Goodwin, LLC for a free consultation. We have successfully sued dozens of collection agencies to stop debt collection abuse and have obtained monetary damages for many of our clients. Even if you have no actual damages, the Fair Debt Collection Practices Act allows you to recover up to $1000 in statutory damages for violations. Depending on the situation, you may also be able to obtain actual damages.
