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What Is the FDCPA?
The Fair Debt Collections Practices Act of 1978, 15 U.S.C. § 1692, is a federal law that puts restrictions on how, when, and where third-party debt collectors can contact a debtor. Bear in mind this only applies to third-party collectors like debt collection agencies, but not the original creditor.
If, for example, you owe a debt to a credit card company and have not been paying, the company itself is not limited by the FDCPA. If it hires a collection agency to contact you in order to collect the debt, that agency is governed by the FDCPA.
FDCPA Laws: Defining Debt Collector Harassment
What Debt Collectors Can and Cannot Do
The most important parts of the FDCPA for debtors are when and where collectors can contact debtors. They cannot contact debtors at inconvenient times, which generally means before 8 a.m. and after 9 p.m. However, if the debtor is called during those times and arranges to talk with the collector outside those times, the collector can call at the pre-arranged time. It does not limit calling on holidays, unless it would be inconvenient.
Collectors can call a debtor either at their home or office. A debtor can tell a collector either verbally or in writing to stop calling them at work, and the collector must abide by that request. To stop collectors calling a debtor’s home, the debtor must submit the request in writing.
If the debtor is represented by a lawyer, and the collector is aware of this, they are not allowed to directly contact the debtor and must go through the lawyer instead.
The collector can also contact credit reporting agencies regarding the debt, as well as the debtor’s spouse. If the debtor is a minor, they can contact the debtor’s parents. Co-debtors are also fair game.
They are not allowed to contact any other third party, except to get information on the debtor’s whereabouts. There are even a number of restrictions on what they can say to these third parties, such as not being able to state that the debtor owes a debt or identify their employer.
Debt Collector Harassment
Debt collectors cannot legally harass a debtor. They are allowed no more than to tell the debtor about the debt they are trying to collect, and to request payment. In some cases, the collector can work with the debtor to make a payment plan or settlement. Examples of harassment includes:
- Threatening or using violence against you or another person
- Threatening or harming yours or another person’s reputation or property
- Using obscene or profane language
- Publishing your name as someone who allegedly does not pay debts, except to credit reporting agencies; child support collection agencies in some states, however, are exempt from this requirement
- Advertising your debt for sale, especially in order to coerce payment of the debt
- Continuously calling with the intent to annoy or harass the person at the called number
- Calling without identifying themselves as as debt collector
False and Misleading Communication
Collection agencies cannot legally engage in false and misleading communications. In short, a collection agency cannot lie to the debtor. They cannot:
- Claim to be law enforcement, or that the collection agency is connected to federal or state agencies; the exception is that child support collectors can be affiliated with the government
- Falsely represent how much you owe, or the compensation the collection agency will receive
- Claim that they are a lawyer, or that any communication is from an attorney
- Make a threat to take any action they are not legally allowed to take, or that they do not intend to take (such as threatening a lawsuit without the intention of filing a lawsuit)
- Falsely claim you have committed a crime
- Threaten to sell your debt to a third party, and as a result, lose protections against paying the original creditor, such as in a breach of warranty
- Send documents that look like they are from an attorney, or part of a legal process, when they are not
- Misrepresent their business name
- Claim they are employed by a credit bureau, unless the credit bureau and collection agency are, in fact, the same company
Unfair Practices
The FDCPA protects debtors against unfair practices that might be taken to collect a debt. A collection agency cannot:
- Add fees or charges, or charge or change interest, that is not part of the original debt agreement or state law
- Accept a check more than 5 days after the post date, unless you are notified between 3 and 10 days advance of when the deposit will be made
- Deposit a check prior to when it is postdated
- Ask for a postdated check, and then threaten you with criminal prosecution
- Incur communications fees, such as collect call charges, by not informing you of the true purpose of the communication.
- Taking or threatening to take your property, known as repossessing, if they have no right or intention to do so
- Communicate with a debtor regarding their debt via postcard
- Use any words or symbols, other than the collector’s address, on the outside of an envelope that indicate it is attempting to collect a debt; the business name also cannot be used if it indicates it it collecting debts
Collectors vs Creditors
It’s important to remember that collectors and creditors are two different categories. Creditors are those you actually owe the money to, and are not governed by the FDCPA. Collectors, however, are third parties who are attempting to collect a debt on behalf of the creditor.
FDCPA Violations
Consumers can report harassment, and what damages they seek, to the Consumer Finance Protection Bureau, either online or by calling (855) 411-CFPB (2372). You can also contact your state’s attorney general.
You can sue for damages, and if you win, the debt collector must also pay your attorney fees.