Federal Law and Debt Collector Rights

Posted over 4 years ago. 1 helpful vote

Email

1

The Primary Federal Law which Protects Against Debt Collectors

The primary Federal Law which provides protection against certain actions by debt collectors and debt collection agencies is called the Fair Debt Collection Practices Act, or "FDCPA". It can be found, formally, at 15 U.S.C. A?A? 1692-1692p.

2

To Whom and What the Fair Debt Collection Practices Act (FDCPA) Applies

The FDCPA applies to personal debts, not business debts. The FDCPA defines "debt collector" as: (1) a person who regularly collects, or attempts to collect, personal debts on behalf of another person or institution; and/or (2) a person who regularly collects, or attempts to collect, personal debts on his/her/its own behalf, but uses a different name in doing so. The following types of entities do not qualify as debt collectors under the FDCPA (this list is not exhaustive): a) an entity collecting another entity's debt in a rare occurrence; b) an entity which collects its own debts using its own name; c) an entity which owned the debt and sold it, but continues to service it (examples include student loan companies and mortgage loan companies); and/or d) an entity which is attempting to collect a debt in good standing (in other words, a debit not in default).

3

Allowable Communications from FDCPA Debt Collectors: Who Can be Contacted About the Debt Itself?

Who can be contacted about the debt? (a) the debtor (borrower); (b) the debtor's spouse; (c) the debtor's attorney on the debt matter (if any); (d) the debtor's parent if the debtor is a minor; (e) the debtor's guardian (if any); (f) the debtor's executor or administrator (such as when the debtor is deceased); (g) a consumer/credit reporting agency; (h) the attorney for the debt collector/debt collection agency; (i) the attorney for the creditor; (j) anyone else the court or the debtor allows the debt collector to contact; and (k) in certain situations, a debt collector can contact almost anyone else in relation to the debt (see Section 4 below for more information).

4

Allowable Communications from FDCPA Debt Collectors: Who Else Can be Contacted About the Debt, and in What Situations?

A debt collector who is unable to locate a debtor may contact a 3rd party to ask for the debtor's location information: home address, telephone number, and place of employment. Also: (a) the debt collector must identify himself/herself by name and state (s)he is confirming information concerning the debtor's location (using the debtor's name, not describing the person as a "debtor"); (b) the debt collector cannot reveal the name of the debt collection agency or that the call pertains to debt collection, unless specifically asked; (c) written communication from a debt collector to a 3rd party to obtain the debtor's location information must not indicate the fact that the debt collector is, in fact, a debt collector; (d) each 3rd party can only be contacted once, unless the debt collector believes that the information obtained during the first contact was wrong, incomplete, or outdated and that the 3rd party would now have better information or unless the 3rd party allows more contacts.

5

When Can a Debt Collector Call the Debtor's Home? The Debtor's Work?

When can debt collectors call a debtor's home about the debt? Generally, debt collectors are allowed to call a debtor's home between 8 a.m. and 9 p.m., using the debtor's time zone. However, debt collectors can legally call at other times if the debtor or a court of law has given such permission. Can the debt collector contact the debtor at work? Debt collectors can contact the debtor at work unless the debt collector has reason to know the employer does not allow this type of communication at work. Usually, debt collectors will attempt to contact the debtor at work until/unless someone (such as the debtor) tells the debt collector such contacts are not allowed. (It is best to follow up and confirm such verbal communications in writing.)

6

Can a Debt Collector Contact a Debtor who is Represented by an Attorney?

A debt collector cannot contact a debtor who is represented by an attorney in the matter if the debt collector knows the attorney's name and contact information, or can easily get it. However, if that attorney is unresponsive or specifically agrees to allow the debt collector to contact the debtor, then the debt collector can contact a represented debtor.

7

Can a Creditor/Debt Collector File a Lawsuit Against a Debtor to Attempt to Collect a Debt?

As a general rule, yes, a creditor or debt collector working on behalf of a creditor can file a lawsuit against a debtor to attempt to collect a debt. This is usually, but not always, true. If you are being sued over a debt, or have been threatened with a lawsuit over a debt, you should seek advice from a qualified attorney. If the debt was secured with property belonging to the debtor or property belonging to someone on the debtor's behalf, a lawsuit to recover the debt owed might be able to be filed in the jurisdiction where that property is located. Barring the property issue above, the general rule is that a lawsuit filed by a creditor or debt collector must be filed in the jurisdiction in which the debtor lives or the jurisdiction in which the original contract creating the debt was executed.

Additional Resources

About Mr. McGrath's Debt Collection Defense

About Mr. McGrath's Professional Qualifications

Rate this guide

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

23,642 answers this week

2,727 attorneys answering