The Fair Debt Collection Practices Act was created by Congress in 1977 as a result of numerous complaints from consumers about collection agencies abusing or harassing them. It outlines very specifically what a debt collector can and can’t do when attempting to collect a debt.
By law, under the FDCPA is that collection agencies may not:
- Address you in an abusive or profane manner;
- Harass you;
- Make false or misleading statements
In addition, a collection agency must identify them as a collector and in the initial communication tell a consumer that any information obtained will be used to effect collection of the debt.
Despite this, I’ve heard many times of debt collectors breaking the law when they call consumers about debts they owe: calling them “idiots”, “deadbeats”, telling them they are going to jail, screaming at them on the phone and much, much, worse. These are all illegal practices.
So what if the collection agency violates the law? How do you prove it? The only way is to record the conversation. That leads to the next question: is it legal to record a phone conversation? The answer depends on your state.
- Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.
- In a one-party state, only one person has to agree to be recorded, but that one party can be you.
- Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.
- If a collector is calling you from a “two-party” state, but you live in a “one-party” state, you must still get the collector’s consent to record the conversation.
- In all states except Vermont, there are criminal penalities.
There are also laws regarding video taping in each of the state. For an excellent reference guide to all laws regarding tape and video recording, you may go to this website: http://www.rcfp.org.
The easiest way to record a conversation on your land line or cell phone is to buy one of the many commercial devices available. If you are constantly being harassed by a collector, it could be a good investment. Should you sue a collector for violations of the FDCPA, you could win up to $1000 in court.
Have you successfully recorded a conversation with an abusive collector? Were you able to use this recording to your advantage? Tell us about it by leaving a comment!
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Your first piece of information states that “Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.” What about recording the conversation if it is on speaker-phone. Example: bill collector calls, I state at some point at the beginning that they are on my phone’s base speaker let’s say because I can’t find the handset. Now the conversation is not specifically confidential and they are aware even if I don’t specifically tell them I am recording. What do you think??!
I have a question, I live in New Hampshire where you have to have both peoples consent to record a converstation over the phone. Now the specific dept collector is calling and I called him back and as soon as I call it says the the phone call is being recorded for quality and training purposes. Now if I called and here that message can I start recording the conversation since the recording is asking me permission ..
If you get a live person on the phone – all you need to do is ask their permission to record.
One thing I have never understood is, how does their making the statement that the calls are “being recorded for quality and training purposes” satisfy the requirement of getting your permission to record a call? They haven’t asked permission, they’ve just made a statement that they are going to do it. How does that justify using that call in a court of law against someone? Supposedly it was for quality and training purposes, not for trying to nail someone on whatever they are calling about.
Generally, I tell them and/or tell clients to say “I do not agree to being recorded.” Sometimes they try to continue the conversation with intimidation, but with me, I just fire back laws from the FDCPA, state statutes, case law and AmJur to them. Other times they will say they will have a supervisor call back on a non-recorded line.
I just recently sued a creditor for violating the FCRA. I did this Pro Se. I did in fact record 3 phone calls from this creditor in which they committed 7 violations of the FCRA. When trial came, the defense attorney argued that the recordings were illegally obtained and should not be admitted as evidence since permission was not given. Although I lived in a “ONE PARTY STATE” their call came from a “TWO PARTY STATE” Believe it or not, this was better for me and put them is a lose lose situation. I argued that during every call received from them, I was notified the call COULD be recorded and or monitored for quality assurance. This demonstrates clear knowledge, by both parties, that the call could be recorded. On all calls I simply stated, “okay” and the creditor continued talking. This demonstrated clear knowledge of a possible recorded conversation. Furthermore, neither the collector or myself asked the question, “Is the call being recorded?”, which negates the thought of deception. Furthermore, since I did not give a clear “yes” a the beginning of the call it was assumed by them I accepted and said “Yes” to the call being recorded which is clear knowledge to them the call is in fact being recorded.
Needless to say, the recordings were able to be brought in as evidence and I was awarded $4,000.00.
A very simple way to get around this “TWO PARTY STATE” rule is: After the statement the creditor must give you, “This call may be recorded or monitored for quality assurance.” Simply say to them, ” Ohh, this call is being recorded?” 99.9% of the time they will say yes because they are trying to intimidate you. Guess what, their ego for intimidation just gave acknowledgment of both parties being aware the conversation is being recorded.
Hope this helps.
Kristy makes a great point — if you get permission as part of the call, you’re good to go.
Easiest and quickest way to record any phone call is through CallTrunk (http://www.calltrunk.com). Cloud-based, keeps the call saved and available forever, free for the first 25 minutes.
So, what happens when a collection agent leaves a message on your answering machine? My machine didn’t ask for permission to record the call, yet the message was recorded anyway. Does this mean a debt collector can sue me because my answering machine recorded their message without their permission? What if I pick up the telephone but the answering machine continues to record?
Personally, I don’t answer any debt collectors calls, unless I answer, tell them to hold and put the phone down just to waste their time and stop them from calling someone else for a minute or two.
The only legal way of notifying someone of a debt is in writing, and until I get a letter in the mail, I ignore everything else. Give me the details in a letter that I can dispute and also take with me to court when I sue you for false collection attempts. But of course, most of these bottom feeders are smart enough to know that they need to threaten over the phone where there is no record of the conversation.
My wife was called by one, had her in tears, I took the phone and told him off. He called her back and scared her into giving a check over the telephone. Told her that he would garnish her wages and put her in jail. First of all, only a judge can garnish your wages or put you in jail, not a debt collector. Secondly, if you are in jail, what wages are there to garnish? Yet, people are intimidated by these illegal actions everyday and states like mine (Florida) will not let me record their threats. Its time for a change!
Great point about the answering machine recording the call, including after you pick it up JDinFL!
It’s just plain STUPID that they are allowed to call our house and we are not allowed to record the call.
That would be like them emailing us but we aren’t allowed to save the email.
I think this law was made by old farts that didn’t have any idea about technology. (or the IRS didn’t want us having a record of their harrassment….probably closer to the truth)
A~
I just had a rude debt collector calling me and recording my calls. Can I take them to small claims court for recording my calls without consent? I am from Illinois and didn’t give consent to record the call. They called me once, and they wouldn’t give me answers to try to resolve the debt. Then they kept calling me back and I called them twice. When I call them I get the pre-recorded statement that this could be recorded for quality assurance purposes. I just wanted to resolve the issue, but they were not being nice and even hungup on me once. So I filed a complaint with the BBB. I got a reply back from them saying they reviewed my recorded calls, 2 that I called them and said I was being rude. So can I sue them for recording my 1 call they did to me without consent? I have the BBB report stating they recorded 3 conversations.