By Kitty J. Lin
I received a very disturbing call the other day from one of my clients. She essentially told me a collection agency called her and told her there would be a warrant issued for her arrest if she did not pay her outstanding debt. The collection agency said the warrant was for issuing a bad check. My client was confused because she did not write any bad checks, but at the same time she was scared because the collection agency was very convincing and the representative was spewing all the “legal mumbo jumbo” (her words) at her that she did not understand. Instead of contacting us, her bankruptcy attorneys, she called all her family members and friends and paid most of the amount owed to the collection agency because she was afraid that she would be sent to jail. Does this sound familiar to you? Unfortunately this sounds very familiar to us. We have even heard worse stories than this. We have heard of collection agencies calling parents of people that owe money and threatening to send their children to jail because their children did not pay their debts. The parents of course want to do anything they can to prevent their children from going to jail so they pay the collection agencies. Collection agencies prey on people who do not know the law and scare them into paying their debts even when they cannot afford to make the payment. This is what the Fair Debt Collection Practices Act (“FDCPA”) seeks to prevent.
The FDCPA was enacted by Congress to ensure that debt collectors collect their debts in a fair manner. The FDCPA ensures that debt collectors do not step over the line with harassment and unethical practices. Under the FDCPA, debt collectors are prohibited from calling you any time before 8:00 a.m. and after 9:00 p.m. in YOUR time zone. It doesn’t matter what time zone the debt collector is calling you from. Debt collectors cannot call anyone other than you to collect the debt from you. That means they cannot call your parents, your siblings, or your friends unless you give permission for them to do so. If they do contact your relatives or friends the only thing they can do is ask how they can contact you. They cannot tell anyone else that you owe them any money. They cannot lie or use deceptive or misleading statements to you in an attempt to collect the debt. They cannot use unfair practices against you (such as threatening to put you in jail or to take away your possessions if they cannot legally do so).
If you tell a debt collector you have a bankruptcy lawyer the debt collector cannot contact you any further. All communication from that point on has to be through your legal counsel. If you tell the debt collector (or if they reason to believe) that they cannot contact you at your work because it is against work policies to receive personal phone calls the debt collector must immediately stop calling your place of employment. Another gem that most consumers do not know about is if you send something to the debt collector IN WRITING that you refuse to pay the debt or that you want them to stop contacting you, the debt collector can no longer contact you unless it is to tell you that their efforts to contact you will stop or to let you know they are proceeding with certain remedies against you (for example, if they are going to sue you).
The FDCPA forbids debt collectors from harassing you when they call you. That means they cannot yell at you, curse at you, threaten you, use obscene language, or annoying you by constantly calling you. When the debt collectors call you they have to tell you who they are and where they are calling from. I have heard of clients receiving harassing phone calls from people that use abusive language and refusing to state where they are calling from. You do not have to take such abuse.
If your debt collectors violate the FDCPA you have a remedy against them: you can sue them for civil liability under 15 U.S.C. 1692k. One caveat: in order to be liable under the FDCPA, the debt collectors generally have to be a third party collection agency. They are generally not the original creditors. For example, if you owe money to Chase, Chase is not a debt collector. They are the original creditor. Certain states may have their own state laws against unfair and deceptive collection activities though. California has the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act) which mirrors the Fair Debt Collection Practices Act. However, in California’s Rosenthal Act, original creditors can be held liable if they do any of the prohibited acts.