Debt Collection Harassment & Your Rights
The best way to stand up to an abusive or harassing debt collector is to know your rights. You can be guaranteed that a debt collector knows the laws and will do whatever it takes to take advantage of the uneducated consumer. I have personally witnessed debt collection tactics that were so egregious, they were borderline criminal.
One of the primary reasons abusive or harassing debt collectors are able to violate the law – and then do it over and over and over again – is because many consumers simply do not understand their legal rights. If you believe you are the victim of abusive or harassing debt collection, contact Howie Law, PC immediately for a free consultation. Do not allow yourself to be victimized or intimidated. Stop the harassment and abuse by enforcing your legal consumer rights immediately.
Q: What laws provide protection from debt collectors?
In 1977, the United States government enacted the Fair Debt Collection Practices Act (FDCPA) finding that there was “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices” and that abusive debt collection practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”
This law applies to all third-party, consumer debt collectors no matter where the debt collector resides. Individual states have also enacted their own debt collection laws, some of which provide even more protection from debt collectors than the federal law. For example, Texas has its own Texas Debt Collection Act which is codified in Texas Finance Code § 392.001 et seq.
Q: Do these laws cover all debts?
Unfortunately, debt collection laws are designed to protect consumers and apply to the collection of consumer debt. Consumer debt is defined by the FDCPA to debt that is the result of a transaction primarily for personal, family, or household purposes. This includes a wide variety of debts for anything ranging from residential mortgages, personal vehicles, credit card debt arising from purchases of food, clothing, school supplies, and even loans for educational purposes. Consumer debt is distinguished from commercial debt (those debts incurred for business purposes) which are not covered by the FDCPA.
Q: What is the difference between a first party debt collector and a third party debt collector?
There are two types of debt collectors – first party and third party collectors. A third party debt collector is an individual who is collecting a debt that is owed to someone else. For example, if a credit card company refers a delinquent account to another company that attempts to collect the debt, then the debt collector would be a third party collector, because the debt collector does not own the debt it is attempting to collect.
A first party debt collector would typically be a collection department within the credit card company that was seeking to collect the debt owed to the credit card company. Because the credit card company owns the debt and is attempting to collect the debt, the credit card company is a first party collector.
Q: Why does it matter whether a debt collector is a first party collector or a third party collector?
The FDCPA only applies to third party debt collectors. In other words, the FDCPA only regulates debt collectors who are seeking to collect a debt owed to another creditor. The FDCPA does not apply to first party debt collectors. However, some state laws, including the Texas Debt Collection Act, apply to both first party and third party debt collectors.
Q: How do I know if a debt collector is harassing me?
The FDCPA prohibits a third party debt collector collecting a consumer debt from using any collection method that is abusive or harassing, false or misleading, or even unfair. The FDCPA provides many specific examples of the aforementioned, and each will be discussed separately below.
Q: What is debt collector harassment or abuse?
The FDPCA prohibits a third party debt collector from taking any action that is harassing, oppressive, or abusive while collecting a consumer debt. Specific examples of this include:
- The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person;
- The use of obscene or profane language or language designed to abuse the person who hears it or reads it;
- Causing a telephone to ring repeatedly or continuously with the intent to annoy, abuse or harass any person at the called number;
- Engaging a person in telephone conversation repeatedly or continuously with the intent to annoy, abuse, or harass any person at the called number;
- The placement of telephone calls without meaningful disclosure of the caller’s identity;
- Leaving a voicemail message without identifying the caller; or
- Using a caller-id that is misleading, incorrect, or incomplete.
Q: What are examples of how a debt collector can use false or misleading representations in violation of the law?
The FDCPA prohibits a debt collector from using any false, deceptive, or misleading representations or means to collect a consumer debt. Specific examples of this include:
- Falsely representing that a debt collector is somehow connected with the United States or any state including the use of any badge or uniform;
- Falsely representing the amount of a debt;
- Falsely representing the character of a debt;
- Falsely representing that the statute of limitations on the collection of a debt has not expired when it has, in fact, expired;
- Falsely representing that any individual is an attorney or that a communication is from an attorney;
- Falsely representing that non-payment of a debt will result in arrest or imprisonment of a person or seizure, garnishment, or sale of property or wages unless such action is lawful and the creditor intends to take such action;
- Threatening to take any action which cannot legally be taken or that is not intended to be taken;
- Falsely representing that a consumer has committed a crime or other conduct in order to disgrace the consumer;
- Communicating or threatening to communicate credit information which is false;
- Using written communications which falsely appear to be documents approved by a court, official, or agency of the United States or of any state;
- Using false information or deceptive means to collect or attempt to collect information concerning a consumer;
- Failure to disclose in communications with the consumer that the communication is an attempt to collect a debt; or
- The use of a business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
Q: What are examples of unfair practices that are prohibited by law?
The FDCPA prohibits a debt collector from using any unfair or unconscionable means to collect or to attempt to collect a debt. Specific examples of prohibited conduct include:
- The collection of ay amount (including any interest, fee, charge, or expense incidental to the debt) unless such amount is expressly authorized by the agreement or permitted by law;
- Depositing or threatening to deposit a post-dated check for the purpose of threatening or instituting criminal prosecution;
- Communicating with a consumer by post-card; or
- The use of any language or symbol other than the debt collector’s address, on any envelope when communicating with a consumer by mail, except that a debt collector may use its name if such name does not indicate that he is in the debt collection business.
Q: Do I have to owe a debt to be protected by the FDCPA?
No. There are many situations which arise where the individual who is being abused or harassed does not even owe the debt. Some of these examples include:
- The consumer being contacted by the debt collector is the wrong person and never owed the debt in the first place;
- The debt has been discharged by bankruptcy;
- The debt is beyond limitations;
- The debt is disputed; or
- The debt has already been paid.
Technology has allowed debt collectors to rapidly advance their collection methods. Nearly all debt collectors now use auto-dialing technology which automatically dials phone numbers without any human input. If a debt collector inputs an incorrect telephone number into its auto-dialer, the results for the individual who has the wrong number can be aggravating to say the least. It can result in dozens, if not hundreds of calls being placed to the wrong person! This is a perfect example of a situation where an individual would have a right to sue the debt collector under the FDCPA even though the person never owed the debt in the first place.
Q: Can a debt collector communicate with me at work?
The FDCPA does allow a debt collector to communicate with a consumer at work. However, a debt collector is prohibited from communicating with a consumer at work if:
- The debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communications;
- The consumer advises the debt collector to cease communications to the consumer at the consumer’s place of employment;
- The consumer is represented by an attorney; or
- The consumer notifies the debt collector in writing that the consumer refuses to pay the debt or that the consumer wishes the debt collector to cease further communication with the consumer.
Q: Can a debt collector call me early in the morning or late at night?
The FDCPA limits the times during which a consumer debt collector can communicate with a consumer in regards to the collection of consumer debt. The FDCPA prohibits any communications at any unusual time or place known or which should be known to be an inconvenient time or place for the consumer. Further, the FDCPA presumes that any time prior to 8 am or after 9 pm where the consumer resides is inconvenient.
Q: Can a debt collector communicate with my employer, my family, my friends, or my neighbors?
The FDCPA regulates a consumer debt collector’s communications with third parties (individuals other than the consumer). Without the prior express consent of the consumer given directly to the debt collector, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency, the creditor, the attorney of the creditor, or the attorney of the debt collector.
However, a consumer debt collector is allowed to communicate with someone other than the consumer for the purpose of acquiring location information about the consumer. During these communications, the debt collector must:
- Identify himself and state that he is confirming or correcting location information concerning the consumer and, only if expressly requested, identify his employer;
- Not state that the consumer owes a debt;
- Not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
- Not communicate by post-card; and
- Not use any language or symbol on any envelope or in the contents of any communication reflecting that the debt collector is in the debt collection business or that the communication relates to the collection of a debt.
Q: What can happen to a consumer debt collector who violates the law?
The FDCPA provides for an award of monetary damages against a debt collector who violates the law. These damages include actual economic damages and damages for mental anguish caused by the debt collector. In cases in which a debt collector has not caused any actual damages but, instead, has committed a technical violation of the FDCPA, the law provides for a penalty of up to $1,000 to be awarded to the consumer.
Q: What if I cannot afford a lawyer or a lawsuit?
In enacting the FDCPA, Congress recognized that in many cases, a consumer will not have the financial resources necessary to hire a lawyer. In order to level the playing field, Congress included an attorney-fee shifting provision in the FDCPA. If a consumer is successful in bringing a FDCPA lawsuit, the Court must award the consumer a reasonable amount of attorney’s fees and expenses to be paid by the debt collector.
At Howie Law, PC, we represent consumers under the FDCPA without asking that they pay us a dime for our time or expenses no matter the outcome. We recover our attorney’s fees and expenses from the debt collector who violated the law and not from the victim.
Q: How long do I have to file suit against the debt collector if I am being harassed?
The statute of limitations (the timeframe during which a suit must be filed) for a lawsuit under the FDCPA is only one year. Thus, if a debt collector violates the law, then a lawsuit must be filed within one year of the violation. Other state statutes have longer statutes of limitations – for example, the statute of limitations under the Texas Debt Collection Act is two years.
Q: What should I do if I am being harassed by a debt collector?
There are a number of critically important things that should be done if a debt collector is violating the law. The most important step is to take whatever steps possible to preserve the evidence of the violation. This can include measures including:
- Record any and all telephone calls with the debt collector;
- Save the recording of any messages left by the debt collector;
- Take pictures of the caller ID on the telephone called by the debt collector each and every time the debt collector calls;
- If you cannot take a picture of the caller ID showing the date and time of each call from the debt collector, then write a log and record each time the debt collector calls;
- Try and get someone else to witness the harassment(friend, family member, co-worker, neighbor); and
Keep copies of any and all letters received from the debt collector (keep a copy of the envelope too)!
Q: How can I get a debt collector to stop calling me?
One sure way to get a debt collector to stop contacting you is to retain a lawyer. Once a consumer has retained a lawyer, the FDCPA prohibits the debt collector from contacting the consumer unless the attorney consents to allow the debt collector to communicate with the consumer or if the attorney fails to respond within a reasonable period of time to a communication from the debt collector.
The other way for a consumer to get a debt collector to cease communications is by sending a letter to the debt collector. Always send the letter by certified mail, return receipt, and always keep a copy of the letter.
Debt Collector Letter Template
The letter should read something along the lines of:
[Date]
[Your Name]
[Your Address]
[Your City, State, and Zip Code]
[Name of Debt Collector]
[Debt Collector Address]
[Debt Collector’s City, State, and Zip Code]
Re: [Your Account Number]
In accordance with the Fair Debt Collection Practices Act, I am requesting that you immediately stop communicating with me about this debt in any form.
Q: What should I do if I dispute charges that the debt collector is trying to collect?
There are a number of errors that can occur during the course of debt collection. Many times, debt accounts are purchased and sold only to be purchased and sold again and again and again. Through the course of this process, the documents which support the debt can be lost. Or, payments made toward the debt may not be recorded.
Even worse, an attempt to locate the consumer may have turned up the wrong one who never owed the debt in the first place. The FDCPA requires that a debt collector validate a debt, in writing, within five days of the initial contact with the consumer.
This means that the debt collector must send a letter to the consumer including
1) the amount of the debt;
2) the name of the creditor to whom the debt is owed;
3) a statement that unless the consumer, within 30 days after receiving the notice, disputes the debt, then the debt will be assumed to be valid by the debt collector;
4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
Clearly, a consumer should always dispute the debt – not only does this cause the debt collector to have to cease collection attempts, the debt collector cannot restart collection activities until it obtains and mails to the consumer verification of the debt or any copy of a judgment to the consumer. If the debt collector cannot accomplish this, then it cannot collect the debt.
Q: How do I go about disputing a debt?
In order to dispute a debt, written notice must be sent to the debt collector within 30 days of receipt of the initial validation request sent to the consumer. Remember, a debt collector must send the validation request within 5 days of the initial contact with the consumer, so it is extremely important to send a validation request immediately upon being contacted by the debt collector for the first time. Always send the letter by certified mail, return receipt, and always keep a copy of the letter.
Debt Dispute Letter Template
The letter should read something along the lines of:
[Date]
[Your Name]
[Your Address]
[Your City, State, and Zip Code]
[Name of Debt Collector]
[Debt Collector Address]
[Debt Collector’s City, State, and Zip Code]
Re: [Your Account Number]
Be advised that I dispute the debt (or a portion thereof). By this letter, I am requesting that you cease all collection attempts regarding this debt unless and until I am provided: a) verification of the debt; b) a copy of any judgment pertaining to the debt; and 3) the name and address of the original creditor.
After sending this letter, the debt collector is required by law to stop contacting the consumer until the validation information has been provided to the consumer. In some instances, this may be enough to cause the debt collector to stop collection activities all together. Further, any collection attempts prior to validating the debt is a violation of the Fair Debt Collection Practices Act.