Fair Debt Collection Practices Act
WHO IS A DEBT COLLECTOR?
A debt collector is anyone, other than the creditor, who regularly collects debts for others. This includes (1) collection agencies, (2) attorneys who regularly collect debts or foreclose mortgages, (3) companies that regularly acquire debts after they are allegedly in default (there are many companies which buy bad credit card debts, delinquent mortgages, etc.).
WHAT DEBTS ARE COVERED?
Your personal, family and household debts are covered under the FDCPA. This includes money owed for the purchase of a home, an automobile for general transportation, medical care, and non-business charge accounts. Business debts are not covered, even if you are personally liable.
HOW MAY A DEBT COLLECTOR CONTACT YOU?
A debt collector may contact you in person, by mail, telephone or telegram. However, it cannot be at inconvenient times or places. It cannot be before 8 a.m. or after 9 p.m., local time. A debt collector may not contact you at work if it should know that your employer does not permit it. A debt collector may not contact you if you are represented by an attorney and the collector knows it.
CAN YOU STOP A DEBT COLLECTOR FROM CONTACTING YOU?
Yes. You can stop a collector from contacting you by writing a letter to the collection agency telling them to stop contacting you. Once the collector receives your letter, it may not contact you again except to state that there will no further contact or to inform you if the collector or creditor intends to take some specific action.
If you send such a letter, (1) keep a copy, (2) send it by means that generates a receipt (e.g., certified mail, fax, Federal Express), and (3) keep the receipt.
WHAT TYPES OF DEBT COLLECTION PRACTICES ARE PROHIBITED?
Harassment and abuse
- Use or threat of violence or other criminal means to harm the physical person, reputation, or property of any person.
- Use of obscene or profane language.
- Telling anyone other than a credit bureau or your spouse that you owe the debt. Debt collectors cannot tell your employer, neighbor, credit references, or friends that you owe the debt. A collector may not contact such persons at all unless the collector doesn’t know where you are and is trying to locate you, and cannot in any event tell them about the debt.
- Calling on the phone repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
- Calling you without identifying themselves.
- Taking a postdated check and not informing you in writing that it will be deposited 3-10 business days prior to deposit.
- Soliciting a postdated check for the purpose of threatening or instituting criminal prosecution.
- Depositing or threatening to deposit any postdated check prior to its date.
- Causing charges to be made to any person for communications by concealment of the true purpose of the communication, e.g., collect telephone calls.
Misrepresentation and deception
- The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State.
- Falsely representing the amount of debt.
- Adding unauthorized charges to debt. The addition of interest, attorney’s fees, collection charges, and other similar items should be examined carefully.
- The false representation or implication that any individual is an attorney or that any communication is from an attorney.
- 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 it.
- Threatening to take any action that cannot legally be taken or that is not intended to be taken. For example, some collectors threaten to report a debtor to the Internal Revenue Service if payment is not forthcoming.
- 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. One common type of false communication is changing the default date used to compute the seven year period a bad debt can remain on your credit report. A collection agency or bad debt buyer is required to use the same date as the original creditor. Often, they use a newer date, which allows the entry to remain on your credit report longer.
- 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.
- The false representation or implication that documents are legal process.
- Using a false name.
- The false representation or implication that documents are not legal process forms or do not require action by the consumer (“you don’t have to show up in court”).
- The false representation or implication that a debt collector operates or is employed by a credit bureau.
- Sending you a collection message by post card.
- Putting any language or symbol, other than the debt collector’s address, on any envelope, including the collector’s name, unless it does not indicate that he is in the debt collection business.
WHAT INFORMATION ABOUT A DEBT MUST A DEBT COLLECTOR PROVIDE TO YOU?
Within five days after you are first contacted, the collector must send you a written notice stating the amount of the debt; the name of the creditor to whom the debt is owed; and explaining how to dispute the debt.
WHAT CAN YOU DO IF A DEBT COLLECTOR VIOLATES THE LAW?
You have the right to sue the collector in state or federal court within ONE YEAR of the violation. You may recover up to $1,000 statutory damages, any actual damages, plus attorney’s fees and court costs. Actual damages may include excessive amounts paid, mental distress, and damage to credit. In a class action, the debt collector may be liable for 1% of its net worth or $500,000, whichever is less, plus actual damages.
In order to protect your rights:
- Save copies of all letters, notices and correspondence you get from debt collectors. If you send them to us, we will analyze them for you without charge.
- Save all voice mails and telephone messages from debt collectors. Rerecord them onto a cassette.
- When dealing with a debt collector, make careful notes of who you talk to and what they say.
- Dispute in writing (not orally) all inaccurate statements and notices you get from a creditor or debt collector. Send a confirming letter after any oral conversations. Send correspondence by means that will generate proof of receipt (fax, certified mail, etc.).
“The Hernandez Law Group, Inc. is a federally designated Debt Relief Agency.”