The Fair Debt Collection Practices Act, 15 U.S.C.1601 is a federal statute, which regulates debt collection practices. The statute seeks to protect consumers and prevent abuse in their interaction with debt collectors. This act covers debt collectors and lawyers who do regularly collect debts (Before 1986, lawyers were excluded). The primary goal of the Fair Debt Collections Practices Act is to protect consumers from abusive, deceptive, and unfair debt collection practices. In the most general terms, the Fair Debt Collections Practices Act prohibits a debt collector from using certain collection methods in its effort to collect a 'debt' from a consumer. Section 1692k of the Act provides for civil liability against a debt collector who intentionally violates the Act; such a collector is absolved if the violation was unintentional and procedures were in place to prevent it.
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error. In a nutshell, there had to be intent on the part of the collector. A bona fide error is not a willful violation. Alternatively any collector who violates the Act can be held liable for his actions. You have a right to sue a debt collector who has violated the act notwithstanding error. Additionally, an employee of an original creditor does not fall under the Fair Debt Collections Practices Act because the Act specifically states "someone who in the day to day operation of their job- collects debts and is a "debt collector". (Who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another).
Many employees of banks, furniture stores and medical facilities are not debt collectors. The law covers debt collection agencies and debt collection attorneys or even original creditors if…. they regularly collect debts in their daily duties "(California statute). - Not all states may support "original creditor exceptions". Remember too that if it is to your benefit, State law can rule over Federal: "a State law is not inconsistent with Federal Fair Debt Collections Practices Act if the protection of such law afforded any consumer is greater than the protection provided by the Federal law". What this means is that Federal always rules if the the State law conflicts but just because the State law may offer more protection, doesn't mean it is a "conflict". If the two laws DO conflict with each other than Federal wins. It's called the Supremacy Clause and it is found in the U.S. Constitution.
So, if you have been mistreated or abuse by a collector you can take action.
Generally the Fair Debt
Collection Act Prohibits:
-You cannot be harassed
-They cannot tell third parties about the debt
-They cannot call you after 9pm or before 8am
-They cannot threaten you or use scare tactics
-They cannot legally sue you for an expired debt
-They cannot contact you once you put them on notice not to
-They must be able to verify the validity of the debt
People fail to meet their credit obligations for a variety of reasons. These range from over-extension of finances to unemployment and illness. Whatever the reason, every person is protected by the federal Fair Debt Collection Practices Act. Congress passed this act to protect consumers from harassment by debt collectors. Personal, family, and household debts are covered under the act. This includes money owed for the purchase of an automobile, for medical care, or for charge accounts.
If a collection agency or collection attorney forgets to add the Mini-Miranda in its communications it can result in violations. Any communication with a debtor must always include the mini-Miranda specified by the Act. 15 U.S.C. § 1692e(11). This notice is usually placed on all dunning letters utilized by collection agencies. For violations see Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992).
Limitations on contacting
A debt collector may only contact a person between the hours of 8 a.m. and 9 p.m. Debt collectors may not contact the consumer at his job if the debt collector is aware that the employer prohibits personal calls. A person may notify a debt collector in writing if he or she does not want any further contact with the collector. Once this notice has been received, the debt collector must stop all communications, except to notify the person that a specific action will be taken.
Can debt collectors tell
someone else about your debt?
No! A debt collector can discuss your debt only with your attorney, a credit bureau, the creditor, and the creditor's lawyer. However, the debt collector can contact other people to find out where the debtor lives or works.
What debt collection
practices are forbidden?
Debt collectors may not harass, intimidate, threaten, or embarrass you. Debt collectors may not make false or misleading statements, such as falsely associating themselves with a government office or credit bureau. They may not use misleading or false threats of imprisonment or criminal charges.
Threatening to Take Legal
Collection agencies often threaten to sue debtors. The Fair Debt Collections Practices Act prohibits collectors from stating that he will take action that cannot be legally taken or that is not intended to be taken. 15 U.S.C. § 1692e(5); Case law: Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2nd Cir. 1993). The FTC has indicated that collectors may not even imply that an action will be taken unless such action is legal and there is a reasonable likelihood at the time the statement is made that such action will be taken.
What to do if a debt
collector violates the Act
Keep detailed records of any communication you have with the debt collector. Include time, date, and the name of the person with whom you spoke. Keep a copy of all written correspondence between you and the debt collector. Also, if a debt collection agency orders your credit reports before they have validated the debt then they may have violated the FCRA and the Fair Debt Collections Practices Act. You may sue a debt collector. FDCPA-Sec. 1692k. - Civil liability
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