Question: A bill collector is hounding me. He calls at all hours of the day and night, calls my work and threatens that I will go to jail if I do not pay. Isn't he violating the law?
Answer: Perhaps the most important statute providing protection against abusive debt collectors is the Federal Fair Debt Collection Practices Act (FDCPA). That statute was adopted by Congress in 1978 to stop abusive debt collection and provide consumers a method to dispute debts.
Under FDCPA, a debt collector is someone seeking to collect a debt owed to a third party. The statute does not apply to someone attempting to collect a debt to himself. This protection is also limited to debt incurred for personal, family or household purposes. That means, it does not apply to business or commercial debt.
FDCPA provides the following protections:
1. Communication is generally limited to between 8:00 a.m. and 9:00 p.m.
2. If the debt collector knows the consumer is represented by an attorney, the debt collector must communicate with the attorney.
3. The debt collector may not communicate with third parties about the debt, except to locate a consumer, report to a consumer reporting agency, or the attorney of the creditor or debt collector.
4. If requested by the consumer in writing, a debt collector must cease communication with the consumer except to advise the consumer the debt collector will stop collection effort or to notify the consumer of intent to invoke a specific remedy.
FDCPA also prohibits any harassment, or personal abuse of any person in connection with collection of a debt. The statute specifically prohibits:
1. Use or threat of violence or other criminal means.
2. Use of obscene or profane language.
3. Publication of a list of consumers who allegedly refuse to pay debts.
4. Advertisement for sale of any debt to coerce payment of the debt.
5. Causing a telephone to ring repeatedly or continuously with intent to annoy, abuse or harass.
FDCPA bans use of false or misleading representations, specifically prohibiting:
1. False claim that the debt collector is affiliated with the United States or any State.
2. False representation of the character, amount or legal status of a debt.
3. Falsely claiming an individual is an attorney.
4. Stating or implying that failure to pay the debt will result in arrest or imprisonment or loss of property or wages.
5. Threatening to take any action that cannot legally be taken or it is not intended to be taken.
The statute does not stop with harassment and misleading action. It also prohibits unfair or unconscionable practices, which include:
1. Collection of any amount not expressly authorized by the agreement creating the debt or permitted by law.
2. Accepting a check post dated by more than 5 days unless the consumer is notified in writing of the debt collectors intent to deposit the check not more than 10 no less than 3 business days before deposit.
3. Soliciting a post dated check for the purpose of threatening or instituting criminal prosecution.
4. Threatening to take non-judicial action to take or disable property if there is no legal right to do so.
5. Communicating with a consumer regarding a debt by post card.
If a debt collector fails to comply with any part of FDCPA, the debt collector is liable to the consumer for actual damage to the consumer and additional damages of up to $1,000.00. If the consumer files suit, the consumer is entitled to attorney's fees and costs from the debt collector.
FDCPA is a powerful statute. Because it provides attorney's fees in addition to damages, even the poorest debtor should be able to find an attorney who will pursue legal redress for violation. You should meet with an experienced attorney right away. The attorney will likely be able to stop the abuse you are suffering and even obtain an award of damages, all at no cost to you.