FDCPA Common Violations

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Understanding the Fair Debt Collection Practices Act (FDCPA)

The Fair Debt Collection Practices Act (FDCPA) is a federal law designed to regulate the behavior of debt collectors and protect consumers from abusive, deceptive, and unfair debt collection practices. Enacted in 1977, the FDCPA is enforced by the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB). This law specifically applies to consumer debts, such as credit card debt, medical bills, and personal loans, but does not cover business debts.

Under the FDCPA, debt collectors are required to follow rules regarding when and how they can contact consumers. For instance, they are restricted to calling during certain hours and must avoid using obscene or profane language. Additionally, debt collectors are required to provide a written debt validation notice, which includes the amount of the debt, the name of the creditor, and information on how the consumer can dispute the debt. Consumers have the right to dispute the debt within 30 days of receiving this notice, ensuring they are not unfairly targeted by debt collection agencies.

What is a “debt collector”?

The FDCPA, the Federal law, only applies to debt collectors as that term is defined. What that means is that most debt collectors aren’t going to be the company that originated the debt, your original credit card company or mortgage company. They’re going to be a down the line company that collects on the debt after it’s fallen behind and their exclusive role will be collection on accounts that are already delinquent. A debt collection agency must adhere to legal limitations, such as prohibiting harassment tactics, including the threat of selling debts to other agencies.

The Florida Consumer Collection Practices Act (“FCCPA”)

In Florida, we have a counterpart to the FDCPA, Florida’s Consumer Collection Practices Act, and that particular law is going to apply to all companies that are collecting on balance, whether they are a “debt collector” or even if they’re an original creditor. So most of the same protections offered under the FDCPA for Florida residents are also going to apply under the FCCPA Florida law.

The Five Most Common FDCPA Violations

So let’s talk about five of the most common violations of the FDCPA:

1. Excessive Call Volume

First is going to be the harassing manner of calls. Debt collection agencies often engage in harassing practices, such as making excessive calls. A debt collector can’t call you too often, particularly if you’ve asked them not to call. A debt collector can’t call you if you have sent them a cease letter under 1692C, asking them that the debt collector discontinue communication. A debt collector can’t call you names or embarrass you or otherwise just be overly assertive in their communications.

2. Debt Disclosure to Third Parties

The second violation is disclosure to third parties about the debt. So the debt collector generally cannot contact friends, family, and usually not employers about outstanding debt, particularly before a judgment has been entered. So if there’s a collection company that’s disclosing to third parties that there’s a balance that’s owed, there may be a violation of the law.

3. Initial Disclosure Requirements

The third set of restrictions under the FDCPA have to do with the debt collector’s initial communication. The first time that a debt collector contacts a consumer, they’re required to provide certain disclosures in writing under 1692G. A lot of times in the industry, we refer to this as a G notice. That G notice requires that certain content be provided to the consumer about what the debt is, who it was originated by, and who it’s being collected upon. The debt collector can’t mask who they are.

4. False or Misleading Information

The fourth set of violations is going to be false or misleading information. If the debt collector is saying that you owe more than what you actually owe, if they’re saying that they can sue you on a debt that is past the time period that a debt can be sued upon, this is called the statute of limitations. Then that may also be a violation of the Fair Debt Collection Practices Act.

5. Actuate Disclosure of the Debt Collector

The fifth set of violations is that a debt collector has to be transparent about who they are and they can’t bluff about legal actions. A debt collector can’t send you letters saying that they’re about to sue you if they don’t actually have an intent to sue you. So if all their letters say that they may file a lawsuit but lo and behold, 6, 12, 24 months go by and no lawsuit has been filed, then that may be in violation of the law. Likewise, if the debt collector is a non-law firm but they are giving the impression that they are a law firm, that too can be a violation of your rights. If a debt collector violated these rules, consumers have the right to take legal action.

Other Common FDCPA Violations by Debt Collectors

Despite the clear guidelines set forth by the FDCPA, many debt collectors continue to engage in abusive and deceptive practices. Some of the other common FDCPA violations by debt collectors include:

• Continuing Collection Efforts on Paid or Nonexistent Debts: Some debt collectors persist in attempting to collect debts that have already been paid off or that the consumer never owed in the first place.
• Illegal Threats: Debt collectors may threaten to take illegal actions, such as suing for a debt that is too old (beyond the statute of limitations) or threatening to garnish wages or seize property without legal grounds.
• False Statements and Misrepresentation: Some debt collectors make false statements about the debt or misrepresent themselves as a law firm or government agency to scare consumers into paying.
• Identity Theft: A significant percentage of debt collection complaints received by the CFPB involve debt collectors attempting to collect debts that consumers do not owe due to identity theft. It is crucial to verify debts and check credit reports regularly to prevent unauthorized claims resulting from identity theft.

Harassment or Abuse

Debt collectors are prohibited from engaging in any conduct that is intended to harass, oppress, or abuse any person in connection with the collection of a debt. This includes:

• Using or Threatening Violence: Debt collectors cannot use or threaten to use violence or other criminal means to harm the physical person, reputation, or property of any individual.
• Obscene or Profane Language: The use of obscene or profane language, or any language intended to abuse the hearer or reader, is strictly forbidden.
• Public Shaming: Publishing a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting specific legal requirements, is not allowed.
• Coercive Advertising: Advertising the sale of any debt to coerce payment is prohibited.
• Excessive Phone Calls: Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse, or harass is a violation.
• Caller Identity Disclosure: Except as provided in section 1692b, debt collectors must disclose their identity meaningfully when placing telephone calls.

Debt Collector Responsibilities and Consumer Protections

Debt collectors have a responsibility to treat consumers with respect and dignity, and to comply with the Fair Debt Collection Practices Act (FDCPA). Consumers have the right to be protected from abusive, deceptive, and unfair debt collection practices.

Debt Collector Responsibilities

Debt collectors are responsible for:

• Identifying Themselves: When communicating with consumers, debt collectors must identify themselves and the company they represent.
• Providing a Written Debt Validation Notice: This notice must include the amount of the debt, the name of the creditor, and information on how the consumer can dispute the debt.
• Avoiding False or Misleading Representations: Debt collectors must not make false or misleading statements about the debt or the consumer’s obligations.
• Refraining from Harassment or Abuse: This includes not using obscene or profane language or making excessive phone calls.
• Maintaining Confidentiality: Debt collectors must not disclose information about the debt to third parties, except as permitted by law.

Consumer Protections

Consumers have the right to:

• Receive a Written Debt Validation Notice: This notice provides essential information about the debt and the consumer’s rights.
• Dispute the Debt: Consumers can dispute the debt and request verification.
• Request Communication Cease: Consumers can request that the debt collector stop contacting them.
• Sue for FDCPA Violations: Consumers can take legal action against debt collectors who violate the FDCPA.
• Report Violations: Consumers can report violations to the Federal Trade Commission (FTC) or the Consumer Financial Protection Bureau (CFPB).

What to Do if a Debt Collector Violates the FDCPA

If you believe a debt collector has violated the FDCPA, there are several steps you can take to seek relief:

• Call to Lawyer (like us!): Yes, I know this is self-promoting. But most lawyers who handle FDCPA claims work on a contingency basis, meaning that the fee gets paid by the company that broke the law. Get an advocate on your side.
• File a Complaint: You can file a complaint with the FTC or CFPB, detailing the violations and providing any evidence you have.
• Sue the Debt Collector: Consumers have the right to sue debt collectors in state or federal court. If you win, you may be entitled to actual damages, statutory damages of up to $1,000, and attorney’s fees.
• Report to State Attorney General: Reporting the debt collector to your state Attorney General’s office can prompt an investigation and potential legal action against the collector.
• Leverage in Settlement Negotiations: Use the violation as leverage in settlement negotiations to potentially reduce or eliminate the debt.
• Seek Legal Assistance: Consulting with a consumer debt attorney can provide you with expert advice and representation, ensuring your rights are protected throughout the legal process.

Reporting the Violation

If a consumer believes that a debt collector has violated the FDCPA, they can report the violation to the FTC or the CFPB. These agencies will investigate the complaint and take action against the debt collector if necessary. Reporting such violations helps protect consumers and ensures that debt collectors adhere to fair debt collection practices.

Suing the Debt Collector

Consumers can also sue the debt collector for violating the FDCPA. If successful, they may recover damages, including actual damages and statutory damages of up to $1,000, as well as attorney’s fees and costs. The FDCPA provides a private right of action, allowing consumers to hold debt collectors accountable for their actions.

In addition to the FDCPA, other laws like the Telephone Consumer Protection Act (TCPA) and the Fair Credit Reporting Act (FCRA) offer further protections. The TCPA prohibits debt collectors from making automated calls without consent, while the FCRA ensures accurate information is provided to credit reporting agencies and mandates the investigation of consumer disputes.

Overall, the FDCPA and related laws are crucial in protecting consumers from abusive debt collection practices. If you are being harassed or abused by debt collectors, know your rights and take action to protect yourself.

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Conclusion

The FDCPA is an essential law that protects consumers from abusive and deceptive debt collection practices. Despite the clear guidelines, many debt collectors continue to engage in FDCPA violations. It is crucial for consumers to be aware of their rights and take action if they are being harassed or targeted by debt collectors. By understanding the FDCPA and knowing how to respond to violations, consumers can protect themselves and their financial well-being. If you believe a debt collector has violated your rights, don’t hesitate to seek professional help and take the necessary steps to safeguard your interests.