Fair Debt Collection Practices Act ("FDCPA") and Debt Collectors
If you are dealing with the original creditor or the debt arises in a business or for a governmental fine, this Guide is not for you. Collection abuses came from debt collectors targeting consumers which, on September 20, 1977, gave Congress cause to enact the FDCPA. The FDCPA regulates the conduct of "debt collectors." While there are exceptions, a "debt collector" is anyone who regularly attempts to collect "debts" (discussed below) for someone else. It includes a collection agency, a lawyer, and someone who purchases defaulted debt. This Guide focuses on the consumers' rights as protected by the FDCPA. This Guide is not intended to discuss the law of any individual state and draws upon the author's assessment of the trend or prevailing views of the court decisions which have interpreted the FDCPA even though many provisions have not been enforced uniformly in all federal courts throughout the country.
What "debt" is covered by the FDCPA?
The FDCPA does not concern itself with whether you owe the debt. The Act regulates the conduct of debt collectors who seek to collect alleged debts. Whether you owe the debt is irrelevant to the FDCPA violation.
The first issue is whether the debt is a consumer debt or a business debt. Medical debt is always personal when the patient is being charged with the debt.
Credit card debt taken in an individual's name and used exclusively to purchase personal, household or family items is a consumer debt. If there are credit card charges which are primarily for a business - a situation which can arise when the consumer has been a consultant or independent contractor - there has to be an inquiry into how the account was opened and the mix of business and personal charges. If the account was not opened for a business and the charges were primarily for personal, family or household purposes, then it is likely a consumer debt.
Initial communications from debt collectors and validation of the debt.
The initial communication from the debt collector must include the "mini-Miranda" warning: that it is attempting to collect a debt and that any information will be used for that purpose.
The debt collector must also send you a letter, either as its initial communication or within 5 days after its initial communication, which explains your 30-day right to dispute the debt or request validation. Neither that letter nor any communication sent within the 30 days may suggest that you have anything less than the full 30 days. Once you request validation, all attempts to collect the debt must stop until you are provided validation. Validation does not require a thorough, detailed investigation; it requires little more than the debt collector confirming the debt information with the owner of the debt.
You have the right to stop communications with a debt collector. Just say so, but it is better to have proof so send something in writing with proof of receipt (such as registered mail).
Communications with third parties and "location information."
With some exceptions, debt collectors may not communicate with anyone except you.
One exception is to obtain "location information," which is the consumer's "place of abode and his telephone number at such place, or his place of employment." A debt collector may communicate with a third party once to confirm location information but may not tell the third party that you owe a debt.
Some debt collectors call a few neighbors seeking location information hoping that you will get messages from them that someone was calling to confirm your address and you will pay the debt just to make them stop calling your neighbors. That practice violates the FDCPA.
Some of the exceptions may seem obvious: your spouse, your lawyer, or your parent (if you are a minor). Others are less obvious: if a court authorizes it, or if needed to enforce a remedy, such as a judicial sale of property after obtaining a judgment.
They cannot leave messages with others for you to call them back.
Telephone calls and voice mail messages.
Telephone calls must not be at unusual times or places. Unless the debt collector has information which dictates a more restrictive schedule, they can call between 8AM and 9PM (your local time). They cannot call repeatedly if the intent is to annoy, abuse or harass you.
When they call or leave a telephone message, they must make "meaningful disclosure" of their identity (which means the agency's name and the purpose of the call) and they must either say that they are a debt collector or that they are calling to collect a debt.
If you already know who they are and you return their call, they are not required to repeat those disclosures but, when they call you, they cannot assume you remember who they are and must repeat the disclosures.
They can call you at work unless your employer prohibits you from receiving personal calls during work. You must inform the collector of that prohibition. They cannot leave messages with fellow employees for you to call back.
Automated telephone calls.
Debt collectors don't earn a living unless debts are being paid. If you haven't paid the debt right away, they know that they are not likely to get you paying unless they speak with you. At the same time, they want to reduce the cost of having live individuals call you. So, many debt collectors employ sophisticated telecommunications technologies. Some of these systems are not designed well and, even with a good design, use less than foolproof technology. Consequently, the systems regularly result in violations of the FDCPA.
What happens if there is a violation of the FDCPA?
Remember, a violation of the FDCPA is irrelevant to whether you owe the debt. So, you cannot avoid an otherwise valid and enforceable debt when there is an FDCPA violation. The FDCPA permits you to recover:
(1) any actual losses you suffer, including emotional distress; PLUS
(2) up to $1,000; PLUS
(3) all of your attorney's fees and litigation costs.
As a result, most lawyers knowledgeable in the FDCPA will take a case on a contingency. Many, but not all of these lawyers are members of the National Association of Consumer Advocates (see the web links, below).
How do I help myself?
Important recordkeeping.  Keep all mail you have received from and sent to any debt collector.  Save all voice mail and answering machine messages. Be careful, sometimes the message does say who it is from which, if from a debt collector, violates the FDCPA. Save those messages. To free up space on your answering system, use a tape recorder, voice recorder or contact an attorney who handles FDCPA cases to retrieve your messages.  Keep a log of all calls. Keep the date and time. If you can, write down the CallerID information. Make notes of the conversation. Ask the person for his or her FULL name or other identification. Many collectors use "desk names" which are not the real name. This is permitted but you want to have some way to identify the individual you spoke with. Write down what was said. You should make notes while you are on the phone and, immediately after you hang up, fill in anything you left out.
Where do I go from here?
Find yourself a lawyer who really knows the FDCPA. The best source is the National Association of Consumer Advocates (see web links, below). You do not necessarily have to use a lawyer in your own state because of the way in which the federal court system works, although some lawyers will only handle local cases while others will handle cases anywhere in the country.