Are you behind on your credit card payments and your balances are more than you can pay off? If so, chances are you have not made a payment on your credit cards in over 3 months and now your creditors have turned your case over to a collection agency. Now, instead of getting constant phone calls from your creditors, you are getting phone calls from some collection agency trying to collect on this debt. Do you have to put with this? Are they allowed to call you day and night? Can they contact your immediate family? These are all things the collection agency will try to get away with, but more often than not, they are in violation of the rules set forth by the Fair Debt Collection Practices Act (FDCPA).
The FDCPA was instituted to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection, and to provide consumers with a way of disputing and obtaining validation of debt information in order to ensure the information’s accuracy. The act created guidelines under which debt collectors may conduct business.
Prohibited Conduct by a Collection Agency
The FDCPA prohibits the following conduct when attempting to collect a debt:
- Hours for Phone Contact. Contacting consumers by telephone outside the hours of 8 a.m. to 9 p.m. local time is prohibited.
- Failure to Cease Communication Upon Request. Communicating with consumers in any way after receiving written notice that said consumer wishes no further contact or refuses to pay the debt.
- Engaging a Person in a Telephone Conversation Repeatedly or Continuously. This is with the intent to annoy, abuse, or harass any person at the number called.
- Contacting a Person at Their Place of Employment. After having been told this is not acceptable and prohibited by the employer.
- Contacting a Person Known to be Represented by an Attorney.
- Communicating with Consumer After Request for Validation Has Been Made. Communicating with the consumer after receipt of a consumer’s written request for verification of a debt made within the 30 day validation period (or for the name and address of the original creditor on debt) and before the debt collector mails the consumer the requested verification or original creditor’s name and address.
- Misrepresenting the Debt. Using deception to collect the debt by claiming to be an attorney or a law enforcement officer.
- Publishing Consumers Name or Address. Putting this person on a “bad debt” list.
- Seeking Unjustified Amounts. The collection agency is demanding amounts not permitted under applicable contract or law.
- Threatening Arrest or Legal Action. The threat to take any action that cannot legally be taken is prohibited.
- Using Abusive or Profane Language.
- Contacting Third Parties. Revealing or discussing your debt with neighbors, co-workers, family members (other than spouse), or friends is strictly prohibited.
- Reporting False Information on a Consumer’s Credit Report. Threatening to do so in the process of collection.
Required Conduct by a Collection Agency
The FDCPA requires debt collectors to adhere to the following actions:
- Identify Themselves and Notify the Consumer. In every communication, that the communication is from a debt collector, and that any information obtained will be used to effect collection of the debt.
- Give the Name and Address of the Original Creditor. Upon the consumer’s written request and made within 30 days of receipt of the notice.
- Notify the Consumer of Their Right to Dispute the Debt. This must be done in writing within 5 days of contacting the consumer by telephone.
- Provide Verification of the Debt. If the consumer sends a written request for verification within 30 days, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether. Verification should include at a minimum the amount owed and the name and address of the original creditor.
- File a Lawsuit in a Proper Venue. A debt collector may file a lawsuit, only in the place where the consumer lives or signed the contract.
Know Your Rights When Dealing with Collection Agencies
May a debt collector contact any person other than you concerning your debt?
If you have an attorney, the debt collector may not contact anyone other than your attorney. If you do not have an attorney, a collector may contact other people, but only to find out where you live and work. Collectors usually are prohibited from contacting such permissible third parties more than once. In most cases, the collector is not permitted to tell anyone other than you and your attorney that you owe money.
What is the debt collector required to tell you about the debt?
Within five days after you are first contacted, the collector must send you a written notice telling you the amount of money you owe; the name of the creditor to whom you owe the money; and what action to take if you believe you do not owe the money.
May a debt collector continue to contact you, if you believe you do not owe money?
A collector may not contact you if, within 30 days after you are first contacted, if you send the collection agency a letter stating you do not owe money. However, a collector can renew collection activities if you are sent proof of the debt, such as a copy of a bill for the amount owed.
What can I do if a bill collector violates the FDCPA?
First, try to get the collector back on the phone and repeat whatever you said the first time that caused the collector to make the illegal statement(s). Have a witness listen in on an extension or tape the conversation. Taping is permitted without the collector’s knowledge in all states except California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.
Then file a complaint. You can even file a complaint if you don’t have a witness, but a witness helps. File your complaint with the Federal Trade Commission, 6th & Pennsylvania Ave., NW, Washington, DC 20850, 202-326-2222. You can also file a complaint with your state consumer protection agency (who in some cases is your state attorney general’s office).
Finally, send a copy of your complaint to the creditor who hired the collection agency. If the violations are severe enough, the creditor may stop the collection efforts. If the violations are ongoing, you can sue the collection agency (and the creditor that hired the agency) for up to $1,000 in small claims court for violating the FDCPA. You probably won’t win if you can prove only a few minor violations. If the violations are outrageous, you can sue the collection agency and creditor in regular civil court.
Dos and Don’ts When Dealing with a Collection Agency
What TO DO When Dealing with a Debt Collector
- Get Copies of Your Credit Reports. You can obtain free copies of your credit reports once a year from AnnualCreditReport.com. Once you have obtained a credit report from all three major credit reporting agencies, TransUnion, Experian, and Equifax, go through each one with a fine-toothed comb. This provides you with a point of reference for debt collections. Look for the debt in question, note the amount shown on the report, and compare that to what you’re being asked to pay.
- Request Debt Validation. Before paying on an old debt or negotiating a deal, force the creditor to provide proof of the debt. We have a standard letter you can send to each of the credit reporting agencies asking them for debt validation.
- Dispute the Debt With the Credit Bureaus as Many Times as Possible. There are a number of instances under which you may not be required to pay on the debt.
- Write Cease and Desist Letters. If your debt has been sold to a third-party collector from the original creditor, is your legal right to stop said collectors from calling you. It does require a formal cease and desist letter, which you should be prepared to send as many times as it takes for them to stop.
- Document All Communication. Record all phone conversations, make copies of all written communication, and send all dispute and cease-and-desist letters via certified mail. This will be the proof you may need if and when a credit agency or debt collector claims they didn’t receive anything.
What NOT to Do When Dealing with a Debt Collector
- Believe Anything the Debt Collector Says. You must rely on your own resources to know your rights and legal obligations:
- Pay or Negotiate Old Debt Before the Debt Validation Process. Regardless of whether a debt belongs to you or not, debt collectors are legally required to provide proof.
- Use and/or Apply for Other Lines of Credit. If you cannot afford to pay your current creditors, it is fraudulent (i.e., illegal) to continue to use and/or apply for more.
- Try to Hide Money. Hiding money or assets is also considered fraudulent. This includes any transfer of funds to friends or family.
- Ignore Debt Collectors. One way or another, debt collectors will find a way to get your attention. Worst case scenario, that means a lawsuit. So instead of ignoring phone calls and throwing away collection letters, let them know you cannot pay and, in the meantime, instigate the debt validation process.