Fair Debt Collection
The federal Fair Debt Collection Practices Act (FDCPA) prohibits collection agencies and other debt collectors from taking certain offensive actions in trying to collect a debt. The FDCPA covers all personal, family and household debts, including car loans, medical fees owing, credit card payments and other bills. The actual creditor is not covered under the FDCPA. For example, a friend who loans another friend money does not have to follow the FDCPA in attempting to get paid back.
TIP: The Federal Trade Commission's Web site at www.ftc.gov/bcp/conline/pubs/credit/fdc.htm explains the act and answers consumers' questions.
What debt collection practices are prohibited under the FDCPA?
Collection agencies and even attorneys who are working on behalf of a creditor cannot contact a debtor before 8 a.m. or after 9 p.m. Profane language, threats, constant calling and publishing your name are also prohibited. Additionally, phone calls to the debtor's place of employment are usually prohibited once the creditor is told not to call there.
Importantly, any false statements violate the FDCPA. Telling a debtor she will be arrested or implying she is talking to an attorney (rather than a collection agent) is prohibited.
SIDEBAR: Sending "fake" legal documents or documents that look like a legal filing and meant to convince a debtor she has been sued or a judgment was entered are prohibited.
Does the FDCPA give me any rights as a debtor?
The FDCPA not only prohibits collectors from certain acts, it allows the debtor the right to sue a debt collector that violates the FDCPA. The debtor may recover money for the damages suffered (plus additional damages up to $1,000) and recover court costs and attorneys' fees.
Is there any way to stop collection agencies from calling me and leaving messages on my answering machine?
Yes. The FDCPA prohibits creditors from contacting you if you write a letter to the creditor (or collection agency) stating you want the phone calls to stop.
SIDEBAR: The letter should ask that all contact stop. Contact includes letters, bills and faxes.
A collection agency sent me a letter telling me they were turning the matter over to an attorney and gave me her name. Have they violated the FDCPA because I wrote and told them to cease all contact?
No. Although a creditor must stop contacting you once you make the request in writing, the creditor is allowed to notify you that specific action is being taken. In this case, you are being informed that an attorney is handling the collection matter. The notification does not violate the FDCPA.
Can a collection agency call my mother to get my phone number?
Yes. Creditors regularly contact friends, relatives, employers and former employers of debtors to get a current phone number or address of the debtor. However, repeated phone calls or contacts to third parties may violate the law.
SIDEBAR: The creditor violates the FDCPA if the third party is informed that the creditors are trying to collect a debt.
I received a collection letter stating that if I do not pay the debt, I will be reported to a credit bureau in 30 days. I will not be able to pay the debt. Is there any way to stop the collection agency from reporting me?
Yes. You have the right to dispute or contest the debt. If you write a letter back to the agency stating you do not owe the money, the amount is wrong or it was already paid, you cannot be reported to a credit bureau for failure to pay. Under the law, the collection agency must investigate your claims and verify you owe the debt.
SIDEBAR: The validation notice is a statement in a collection letter that the debtor has the right to dispute the debt within 30 days. Debt collectors must include the notice in their initial communication with the debtor.
TIP: Agencies do not violate any laws by failing to tell the debtor in letters sent after the initial communication that she can dispute the debt.
I was never billed (and never paid) for a sofa I purchased at a local department store, and after 6 years I am getting calls from the store trying to collect. Is the store violating the FDCPA?
No. Although you can no longer be sued to collect the amount (since the statute of limitations has passed), the store can still attempt to collect.
SIDEBAR: The statue of limitations may be different depending on the type of debt. For example, a credit card account is an open account and has a shorter statute of limitations as opposed to a promissory note (a contract), which might have a 10-year time period.
Is there a time limit as to how long a collection agency can pursue me for payment?
Yes. The time limit is called the statute of limitations. After a period of years passes, the debt is no longer collectible and the collection agency (unlike the store) cannot continue to pursue you. The length of time depends upon the laws in the state where you live, but generally, a debt can legally be collected for 4 to 6 years after it first becomes delinquent.
SIDEBAR: A collection agency that falsely states the debtor will be sued when legally a lawsuit is not possible is violating the FDCPA.
TIP: A collection agency can allege "bona fide error" to defeat an unfair practices claim. If the collection agency was unaware of the statute of limitations and did not intend to mislead you, the FDCPA was not violated.
I hired an attorney and sued a collection agency for unfair debt collection practices. Can the agency continue to contact me about owing the debt?
No. Once a lawyer represents you, it is a violation of the FDCPA to contact you (the debtor). The agency can only communicate with your attorney.
A major department store will not stop sending me bills for past due amounts on my credit card, even though I wrote and told them to stop contacting me. Is the store violating the FDCPA?
No. The department store is your actual creditor and the FDCPA does not apply to creditors. The store can continue to bill you and contact you concerning your past due amounts.
The letter I received from the collection agency states I also owe "collection fees" and added $100 to my debt. Do I have to pay the fees?
No. The agency is violating the FDCPA by unilaterally adding amounts to your debt that you do not owe and did not agree to.