Q. What is a "consumer debt"?
A. This means a debt that is not a business debt. It could be a car loan, a home loan, a credit card, a medical bill, etc. Basically it is accurate to say anything that is not a business loan or debt probably is a consumer debt.
Q. I know that I owe the money that the collector says I owe. Does that mean the debt collector do whatever it wants since I owe the money?
A. It doesn't matter if you owe the money - the debt collector must still follow the law and cannot harass you.
Q. I've heard about the Fair Debt Collection Practices Act ("FDCPA"). Does it apply in my situation?
A. The FDCPA applies when four things are present:
1. You are a consumer;
The debt is a consumer debt (personal, household, family - not business),
3. The collector is a "debt collector", and
4. There is a violation of the FDCPA.
Q. What is a "consumer"?
A. A consumer is an individual. The easiest way to think about it is this way - a corporation or partnership is not a consumer. A person is a consumer.
Q. I'm not sure if the company calling me is a "debt collector" - how do I know?
A. A "debt collector" under the FDCPA is a company that is not the original creditor. It is not the hospital. It is not the credit card company. It is not the car finance company. It is a company, sometimes called a "third party" collector that has been hired by the original creditor or someone else to collect the debt. It also includes "debt buyers" - companies that buy up debt that is in default and then they either collect it or send it out to collection agencies.
Q. OK. I'm a consumer and I'm dealing with an old credit card debt. It is a collection agency calling me and my neighbors. How do I know if this violates the FDCPA?
A. The FDCPA has a lot of parts to it but we can summarize it this way. If a debt collector acts towards you in any one of the following four ways, it is normally a violation of thee FDCPA:
1. Unfair conduct towards you,
2. Untrue statements made to you,
3. Treating you in an undignified manner, and
4. Not treating you with respect.
Q. What are some examples of violations of the FDCPA?
A. There are so many different examples. We'll just touch on a few.
1. Unfair conduct - Calling your neighbors to embarrass you (known as a "block party"). Calling your co-workers (called an "office party"). Suing you on a debt that you do not owe. Putting false information on your credit reports. This would also include most voice mail messages left on any phone.
2. Untrue statements - Lying to you about whether you owe the money. For example debt collectors often say if you are married or were married you owe your spouse's debts, even if you were not on them. Telling you that you will go to jail unless you pay for the old credit card debt.
3. Treating you in an undignified way or without respect - using profanity with you. Insulting you. Calling you repeatedly to harass you. Yelling at you.
Q. OK - the FDCPA covers my situation. How does the FDCPA help me?
A. The FDCPA provides four benefits:
1. Free lawyer paid for by the defendant debt collector
2. Costs and expenses of litigation are paid for by defendant debt collector
3. $1,000 in statutory damages if you have no actual damages
4. Actual damages if you have been harmed by the harassing debt collector.
Q. What is the TCPA and why should I care about it?
A. The TCPA protects you from collection calls to your cell phone and your home phone and it is very powerful law that collectors hate.
Q. How and when does the TCPA protect me from collection calls to my cell phone?
A. The TCPA prevents auto dialed calls (computer dialed calls) to your cell phone unless you gave the collector or the original creditor permission to call your cell phone. It also prevents "pre-recorded" messages - these are messages that are not being left live but instead were previously recorded or they are computer generated voices.
Q. What if I may have given permission for the creditor to call my cell phone? What can I do?
A. Revoke the permission. Revoke the consent. Tell the collector in writing (best practice) that you are taking away any permission that you may have given for the collector to call your cell phone.
Q. OK I understand about cell phones - what about collection calls to my home phone?
A. The only types of calls (for our purposes) that the TCPA prohibits are collection calls with pre-recorded messages that are not for you or they are for debts that you never took out. Often collectors will call your home looking for someone else. Or they mistakenly believe that you owe a debt when you don't - you are a victim of ID theft for example. So they call your home number leaving pre-recorded messages. You need to tell the collector it has the wrong number and not to call again. If the collector continues to call then you most likely have a TCPA violation.
Q. What does the TCPA give to me?
A. You get the following:
· Actual damages (similar to the FDCPA);
· Statutory damages of either $500 or $1500 . . . per call; and
· It applies to anybody - not just collectors - so it applies to auto finance companies (GMAC, Nuvell, Ford Motor, etc), to credit card companies (AMEX, Chase, Discover, etc) and to mortgage companies (Bank of America, Litton Loan, Wells Fargo, etc).
Q. What do I do if I am getting collection calls or letters right now from a bill collector?
A. Document the calls by keeping a log. If you are going to record the calls then make sure you have the permission of the collector. Often when you call (or when they call you) you will be told that the call "may be recorded" so that gives you some protection in that it appears you have the collectors consent to record the call.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.