LEGAL GUIDE
Written by attorney Mara Ann Baltabols | Dec 7, 2010

Guide to the Fair Debt Collection Practices Act ("FDCPA")

The Fair Debt Collection Practices Act (“FDCPA"), 15 U.S.C. §1692 et seq., outlines procedures for debt collectors to communicate a debt to a consumer and for consumers to dispute or verify the debt. The FDCPA provides remedies to consumers for false, unfair, unconscionable, misleading, harassing, or abusive actions on the part of debt collectors made in connection with the collection of debt. The FDCPA covers the ongoing collection of debt; therefore a consumer may recover under the FDCPA even if the parties have settled the debt, so long as a portion of the settlement amount remains in collection. 15 U.S.C. §1692e.

The FDCPA encompasses a broad purpose in favor of the consumer and “requires a strict liability analysis," Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 2004); McCabe v. Crawford & Co., 272 F. Supp. 2d 736, 743 (N.D.Ill 2003), intended to aid the consumer. The consumer may recover for very technical violations of the FDCAP regardless of intent. Overall, the FDCPA provides few exceptions to liability for violations. The FDCPA does allow for the “bona fide error" defense, as described in 15 U.S.C. §1692k, where a violation occurs “notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." Id.

An offending debt collector may incur civil liability and damages under the FDCPA. 15 U.S.C. §1692k. A consumer may bring an action for a violation in any court of competent jurisdiction, either state of federal court, for actual damages, additional damages in an amount not exceeding $1000, and attorney’s fees and costs. Id. To determine the amount of actual damages, the court will consider not only the frequency and persistence of the non-compliance by the debt collector, but the nature of the non-compliance, and the extent to which it was intentional.

General definitions under the FDCPA include “consumer," “debt collector," and “debt," and encompass a broad category of parties and communications. “Consumer," is defined as the consumer himself, a spouse, parent, guardian, executor, or administrator. 15 U.S.C. §1692a(3). “Debt Collector" “means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. §1692a(6). “Debt" includes a monetary obligation that arises from a transaction for money, property, insurance or services for which money is still owed even where the obligation has been reduced to a judgment. 15 U.S.C. §1692a(5).

Despite the FDCPA broad purpose in favor of consumers, a consumer must be careful to pursue only legitimate claims under the FDCPA. Otherwise, a consumer may be held liable for the attorney’s fees and costs of the defending debt collector for an action brought bad faith or for the purposes of harassment. 15 U.S.C. §1692k. The consumer should also be careful to provide proper notice to the debt collector requesting verification or termination of further communication of the debt before pursuing civil liability. 15 U.S.C. §1692c. The consumer may provide said notice one of two ways. Section 1692c(c) permits the consumer to make a blanket request for the collector to cease collection of the debt. Section 1692g outlines a procedure for the consumer to request that the collector verify the debt directly following its first communication of the debt to the consumer. 15 U.S.C. §1692g.

According to 15 U.S.C. §1692c, without prior consent of the consumer, the debt collector may not communicate a debt at any unusual time or place, may not communicate with the consumer if the debt collector knows that he or she is represented by an attorney, or at the consumer’s place of employment. Id. According to 15 U.S.C. §1692c, once the consumer communicates in writing to the debt collector that he ceases communication on the debt, the debt collector must cease such communication apart from:

(1) to advise the consumer that…further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

Section 1692g supplies a means for a consumer to verify the debt. The initial communication of debt should include, or the debt collector should supply, the following information in writing within five days of the initial communication: (1) the amount of the debt; (2) the name of the creditor owed the debt; (3) a statement that the consumer must dispute the debt within thirty days or the debt collector will assume that it is valid; (4) a statement that if the consumer disputes the debt within the thirty day period that the debt collector will verify the debt and mail a copy of the verification to the consumer; (5) and a statement that if the consumer requests such information and does so in writing that the debt collector will provide the consumer with the name and address of the original debtor. 15 U.S.C. §1692g(a). The debt collector is required to cease collection of the debt until it responds with verification. 15 U.S.C. §1692g(b). A consumer’s failure to request verification of the debt in this manner does not amount to an admission of liability for the debt. 15 U.S.C. §1692g(c).

As outlined above, the communication or representation of debt may be actionable under the FDCAP, in addition to the time or place of the communication. Furthermore, a debt collector must cease communication once the consumer has sent the proper notice. A debt collector may also be held liable under the section 1692e of the FDCPA for false, deceptive, or misleading representations made in connection with the collection of debt. 15 U.S.C. §1692e. Violations include, but are not limited to, making a false representation of the character, amount of legal status of the debt; making a false representation or implication that debt collector is an attorney or communicating information directly from an attorney in regards to the debt; or making a false a representation or implication that the debt is nonpayment will result in imprisonment, attachment, or sale of property or wages. 15 U.S.C. §1692e.

The standard for whether a representation is misleading depends upon whether or not the communication or conduct would tend to mislead the “unsophisticated consumer." Gammon v. GC Servs. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994); Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir. 1997). "Significantly, proof that a letter violates the FDCPA does not require evidence that the plaintiff-recipient was confused as a matter of fact." Mendez v. M.R.S. Assocs., 2005 WL 1564977, *3; 2005 U.S. Dist. LEXIS 13705, *9 (N.D.Ill., June 27, 2005) (emphasis in original). "The basic purpose of the least-sophisticated consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997); U.S. v. Nat'l Fin. Serv., Inc., 98 F.3d 131, 1136 (4th Cir. 1996); Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir. 1993); Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Swanson v. S. Oregon Credit Serv., Inc., 869 F.2d 1222, 1225-26 (9th Cir. 1988).

In terms of the means of collection, 1692f prohibits a debt collector from using “unfair or unconscionable means to collect or attempt to collect any debt,…" 15 U.S.C. §1692f. The term “unfair" encompasses a variety of potential violations, but section 1692 provides for a non-exhaustive list of violations. Action unfair practices include accepting a check postdated by more than five days, collecting or attempting to collect an unauthorized amount or fee in relation to the debt not authorized by agreement or permitted by law, or threatening to taking nonjudicial possession of property that the collector has not right to. 15 U.S.C. §1692f. Otherwise, counsel may compare an unfair practice to the listed violation to determine whether or not to bring an action in court.

Conclusion

Where a consumer believes a violation of the FDCPA has occurred, the consumer should first send a written notice to the debt collector stating that she is disputing the debt and wishes that the debt collector cease communication with her. If debt collector initiates further communication not within one of the exceptions allowed by 15 U.S.C. §1692c(c), the consumer may bring an action for actual and additional damages not exceeding $1000 in either state or federal court. Otherwise, counsel should judiciously compare potential violations to examples listed in the FDCPA to determine the probability of success.

The information in this answer is not intended as legal advice nor do I intend to create an attorney-client relationship with any reader simply by answering this question or contributing as a member of AVVO.

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