Friday, October 26, 2012

The FDCPA Against Collectors

A debt collector may not be held legally responsible in any action brought under this subchapter if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error. In a nutshell, there had to be intent on the part of the collector. A bona fide error is not a willful violation. Alternatively any collector who violates the Act can be held legally responsible for his actions. You have a right to sue a debt collector who has violated the act notwithstanding error. Additionally, an employee of an original creditor does not fall under the FDCPA because the Act specifically states "someone who in the day to day operation of their job- collects debts and is a "debt collector". (Who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another).

Many employees of banks, furniture stores and medical facilities are not debt collectors. The law covers debt collection agencies and debt collection attorneys or even original creditors if. they regularly collect debts in their daily duties "(California statute). - Not all states may support "original creditor exceptions". Remember too that if it is to your benefit, State law can rule over Federal: "a State law is not not in agreement with Federal FDCPA if the protection of such law afforded any consumer is greater than the protection provided by the Federal law". What this means is that Federal always rules if the State law conflicts but just because the State law may offer more protection, doesn't mean it is a "conflict". If the two laws DO conflict with each other than Federal wins. It's called the supremacy Clause and it is found in the U.S. Constitution.

So, if you have been physically abused or abuse by a collector you can take action.

Generally the Fair Debt Collection Act Prohibits:
-You cannot be harassed
-They cannot tell third parties about the debt
-They cannot call you after 9 p.m. or before 8 a.m.
-They cannot threaten you or use scare tactics
-They cannot legally sue you for an expired debt
-They cannot contact you once you put them on notice not to
-They must be able to verify the validity of the debt

People fail to meet their credit obligations for a variety of reasons. These range from over-extension of finances to unemployment and illness. Whatever the reason, every person is protected by the federal Fair Debt Collection methods Act. Congress passed this act to protect consumers from harassment by debt collectors. Personal, family, and household debts are covered under the act. This includes money owed for the purchase of an automobile, for medical care, or for charge accounts.

Mini-Miranda Warning
If a collection agency or collection attorney forgets to add the mini-Miranda in its communications it can result in violations. Any communication with a debtor must always include the mini-Miranda specified by the Act. 15 U.S.C. 1692(e)(11). This notice is usually placed on all dunning letters utilized by collection agencies. For violations see smith v. Trans world Systems, Inc., 953 F. 1025 (6 th Cir. 1992).

Limitations on contacting the consumer
A debt collector may only contact a person between the hours of 8 a.m. and 9 p.m. Debt collectors may not contact the consumer at his job if the debt collector is aware that the employer prohibits personal calls. A person may notify a debt collector in writing if he or she does not want any further contact with the collector. Once this notice has been received, the debt collector must stop all communications, except to notify the person that a specific action will be taken.

Can debt collectors tell someone else about your debt?
No! A debt collector can discuss your debt only with your attorney, a credit bureau, the creditor, and the creditor's lawyer. However, the debt collector can contact other people to find out where the debtor lives or works.

What debt collection methods are forbidden?
Debt collectors may not harass, intimidate, threaten, or embarrass you. Debt collectors may not make false or misleading statements, such as falsely associating themselves with a government office or credit bureau. They may not use misleading or false threats of imprisonment or criminal charges.

Threatening to Take Legal Action
Collection agencies often threaten to sue debtors. The FDCPA prohibits collectors from stating that he will take action that cannot be legally taken or that is not intended to be taken. 15 U.S.C. 1692(e)(5); Case law:Bentley v. Great Lakes Collection Bureau, 6 F. 60 ( Cir. 1993).The FTC has indicated that collectors may not even imply that an action will be taken unless such action is legal and there is a reasonable likelihood at the time the statement is made that such action will be taken.

What to do if a debt collector violates the Act
Keep detailed records of any communication you have with the debt collector. Include time, date, and the name of the person with whom you spoke. Keep a copy of all written correspondence between you and the debt collector. Also, if a debt collection agency orders your credit reports before they have validated the debt then they may have violated the FCRA and the FDCPA. You may sue a debt collector.FDCPA-Sec.. - Civil liability

We have a sample letter for FDCPA violations

We also have a debt collection log sample letter to keep all notes

Read all Consumer Statutes> (opens in new window)

Collection agency laws by state

Restrictions on garnishments

FDCPA opinion letters by the FTC. These letters are a gem!

Locate a collection agency

Statute of Limitations to sue under the FDCPA
The FDCPA provides for a one-year statute of limitations. 15 U.S.C. (d). The limitation period begins to run on the date a communication is mailed, and cannot be extended by the Rules of Civil Procedure. Case law: v. U.S. West Communication, Inc., 967 F.2nd 259 ( Cir. 1992).If you are going to sue for damages under the FDCPA you must do it within one year or forget it.

Can you sue the Original Creditor for FDCPA Violations?
in the vast majority of cases, creditors do not have any liability arising from the FDCPA. However, the term "debt collector" does include creditors who, "in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. (6)(A). But... and this may be a long shot, you can try to claim "negligent referral" by an OC who sends the debt to a CA without ever billing you.

What is considered debt validation
This may be one of the most confusing aspects of the FDCPA. Debt validation means to have the CA prove the debt, (1) belong to the right debtor and (2) not already paid prior. Many CA are now fighting back against a debtor's request for VOD because they claim, the FDCPA states they only have to prove it is your debt and not paid prior. This is an area that will definitely need attention from lawmakers to clarify. However, in our opinion, VOD does include proving the debt is valid beyond just showing it belongs to the right debtor. So stick to your guns when requesting proof of the debt because you have an absolute right to make sure the debt is valid in its balance as well as contract information. Be concise in your request for VOD. Don't ramble on and on asking for everything under the sun, because that may not be supported by the FDCPA. Ask for your signature, balance due, posted payments, any credits and date of last payment and activity. These are all valid requests in our opinion and could be effectively argued under the FDCPA for VOD.See this article for more about VOD>

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