What can't debt collectors say to you?
By attorney Shane A. McClelland, Special to THELAW.TV
It's inevitable that you will eventually get a call from a debt collector. I hear about it all the time, from friends, family, colleagues, even my barber. Sometimes it's about a bill they've forgotten to pay, a bill they didn't realize they had, or they have simply fallen behind on payments. No matter what the situation, you still have rights when dealing with debt collectors and deserve to be treated with respect. Below you'll find a brief explanation of the law that protects you, as well as a list of what debt collectors cannot do when they call you.
The Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA) is a federal law that applies to every state. Many states also have additional protections for consumers that may afford you additional rights under the law. But for a general idea, we'll just use the FDCPA.
The FDCPA was passed in 1978 and was designed to eliminate the abusive practices of debt collectors and to provide consumers an avenue for fighting back against these unfair and abusive practices. The FDCPA created a laundry list of rights for consumers and guidelines that debt collectors must follow.
The law covers debt collection for household, personal, and family debts (things like mortgages and car loans), as well as credit card debt, past-due utility bills, past-due student loans, medical bills, insurance bills, etc. Basically, any debt that you owe can be subject to this, with one key caveat: it only applies to third-party debt collectors. Meaning if the person calling you works for the company you owe the debt to, the FDCPA does not apply. However, this is typically where some states have beefed up their laws. If you are experiencing harassment from a debt collector not covered by the FDCPA, call your state's attorney general and ask if you have any additional protections. Or call an attorney experienced with consumer law and the FDCPA.
If a debt collector does not follow these guidelines, they are subject to penalties and remedies under the FDCPA. What does that mean for you? Well, it's actually all good news! If you are unfortunate enough to become the victim of an abusive debt collector, you could be entitled to money damages up to $1,000, as well as your attorney's fees and costs. That's right, you could receive $1,000 AND your attorney is paid for by the debt collector. It's an unfortunate and annoying situation, but that's a pretty good deal for consumers.
Unfortunately, not many people know about the FDCPA. I'm not just talking about consumers. Just yesterday, my law partner was talking to a fellow bankruptcy attorney. The other attorney had never heard of the FDCPA, and even said, "I bet a lot of my clients have claims under this." Based on the situation her clients are in (bankruptcy), I bet a lot of them have several $1,000 claims under the FDCPA. That's why it's important to educate yourself and, if necessary, work with an attorney who is knowledgeable about consumer laws.
The FDCPA is not a long law. I believe it's 21 pages total. However, there's a massive list of things debt collectors can't do and can't say. The list of what they can't say or insinuate is fairly long, so I'll hit the high points and the most common mistakes they make. You'll probably notice a theme running through all of them (coercion). For some collection companies and debt collectors, they ignore law and try to go for the easy and fast consumer buck. That's why I like to think of the debt collector's telephone as a crowbar -- with such a device it is possible to pry one's mouth open wide enough to allow the insertion of at least one foot, typically two. But that works out for you!
This is not a comprehensive list. If you think you have experienced a violation of the FDCPA by a debt collector, you should contact an experienced consumer lawyer, specifically one that has experience with the FDCPA. In this list, I'm also going to include a few other violations that debt collectors commonly make over the phone. These won't necessarily involve you or be things they specifically said.
1. They can't call you from a fake or "stolen" number. This is called "line spoofing." Often times they'll do this to deceive you. It'll be a local number or the number of a government office -- like the police department.
2. Similar to the above, they can't say that they are law enforcement -- the police, sheriff, etc.
3. They also can't threaten to have you arrested. They also can't issue a warrant for your arrest. You can't be arrested for debt.
4. They can't threaten you with physical harm. It sounds kind of crazy, but there have been plenty of cases of this. It typically happens to the elderly or women. The debt collector will threaten to show up at their house, or hunt them down and "beat them up."
5. In general, they can't threaten you. But that includes things outside of physical harm. Things like:
- Threatening to sue you, if they have not done so, or have no intent of actually doing so.
- They can't threaten to garnish your wages. Again, if they have not done so, or if they have no intent of actually garnishing your wages.
- They also can't threaten to put a lien on your property, or repossess your property, if they don't intend to do so.
- They can't threaten to report you to the credit bureau, if they haven't done so, or do not intend to.
- They can't threaten to ruin your reputation.
6. In a similar category to threats, debt collectors also can't use profane language toward you or scream at you. This goes back to you deserving to be treated with dignity and respect.
7. They also can't say they are a lawyer, if they aren't. This one typically comes in conjunction with the threat to sue you.
Other things they can't do
1. Disclose your debt to another person. As a result, they must verify with whom they are speaking on the phone.
2. Similarly to No. 1, they can't disclose your debt to family, friends, or neighbors. They typically do this to embarrass you into paying them.
3. Call you before 8 a.m. or after 9 p.m.
4. Call you repeatedly during a short period of time.
5. Call you at work if you have asked them not to, or if they know your employer doesn't want you to take personal calls at work.
6. Call you and leave a message on a public answering machine.
7. Use deceptive mailings to contact you or mailings that state they are from a debt collector on the outside of the envelope.
8. This last one isn't a "can't do," more of a must do: they must disclose that they are a debt collector, attempting to collect a debt.
What can you do
Again, I want to say that this is not a comprehensive list, just the most common things a debt collector can't do. Just keep in mind that if something feels abusive, harassing, coercive, or deceptive, you may have a claim against that debt collector.
The first thing you should do is start keeping a log of every time the debt collector/debt collection company calls you. Write down the day and time, what the conversation was about, the name of the company, the name of the person you spoke with, basically everything you can. This information will be very helpful to any attorney who works on your case.
After that, find an attorney who is experienced with the FDCPA and other similar laws and call them. Remember, if you have a good case (your attorney will tell you), there is a very high chance that your attorney's fees will be covered if you win the lawsuit -- assuming it doesn't settle before court.
The author, Shane McClelland, is an attorney in Columbus, Ohio, with experience in consumer defense and the Fair Debt Collection Practices Act.