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CA calling my house


JSnow
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JSNOW

The FDCPA is unclear as regards a verbal cease and desist. It does not say you can -- it does not say you cannot. It mentions only a written cease and desist. Such is the fabric of different opinions and conclusions.

There seems to be a common opinion that a verbal cease and desist has the weight of law. I have seen on this forum several statements that there are court opinions that support a verbal cease and desist. I have not seen those opinions and thus by nature am cynical about those things that go against my experience.

Here is what the FDCPA says (emphasis mine):

© CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

(1) to advise the consumer that the debt collector's further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

I do know that if you were to call the Federal Trade Commission and speak to a member of the enforcement staff they will tell you to "send your cease communication instruction by certified mail return receipt requested".

I am not suggesting that you cannot verbally instruct a CA to stop calling. Clearly, you can. However, I suspect the CA will ignore such verbal instructions. In my opinion, your ability to enforce a verbal instruction is suspect. At minimum, enforcement is structurally challenging.

Regardless, there is no requirement that you ever talk to a CA. If you receive a call that you do not wish, then just hang up. Also, screening is a very workable option.

You ask "but what if they continue to call me after I tell them not to??"

There are no FDCPA cops. You can complain to the FTC but the FTC does not investigate individual complaints. At best, the FTC will add your complaint to their list of complaints for that particular CA. Sometimes, when the behavior is egregious and complaints voluminous, the FTC will investigate. I have seen the FTC assess some whopper fines.

An FDCPA violation is a civil matter. That means the person damaged (or wronged) may seek redress in court. Our legal structure places the burden of proof on the plaintiff -- which goes back to the structural challenge I mentioned previously.

If you prevail in your lawsuit, the FDCPA provides for a judgment in the maximum amount of $1000. There are two common misunderstandings about this statutory amount. First, many think the penalty is $1000. That is incorrect as the FDCPA specifically uses the term "maximum" which means that a judge may award a smaller amount -- some judges do -- I once read about an award of $1 and can only suppose that the judge felt obligated to award something but felt the plaintiff was undeserving for some reason. Second, many think the penalty is on a per violation basis. Again, this is incorrect as the FDCPA uses the term "per action" -- which means per lawsuit. So, if you had 50 violations, unless you were willing to file 50 lawsuits, the max is still only $1000.

I hope this answers the question you posed.

But a final thought. Invoking your right to cease and desist leaves the CA with only two choices -- either shut up and go away -- or file their lawsuit. I don't know anything about the facts of your situation and thus cannot advise you. If you are lawsuit adverse, you might want to think carefully before taking action.

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