What is the FDCPA?
I realized I’ve posted several articles without really explaining what the FDCPA is. I’ll remedy that right now!
The FDCPA is a Federal Law enacted in 1977. The statute is directed to third party debt collectors and attorneys who regularly collect debt. The statute was enacted to prevent these parties from harassing persons that owe debt. The statute doesn’t support the nonpayment of debt; it simply states that while you are attempting to get your finances in order so that you can pay you shouldn’t be treated inhumanly.
The FDCPA has strong regulations on third party contacts. The statute states that debt collectors are never allowed to contact any of your friends or family members. The exception to this provision permits debt collectors to contact third parties only if they don’t know how to get a hold of you. If they don’t know how to get a hold of you, they are permitted to contact third parties to acquire your location information. However, they are only allowed to call each person once and they are never allowed to disclose to those persons that you owe a debt!
It’s interesting; I represent a lot of clients that are greatly upset because debt collectors are contacting their friends and family members. There are websites out there that allow debt collectors to “skip trace” people. These skip trace reports provide all of your relatives telephone numbers, your address, your neighbors telephone numbers, etc. When I sue these companies for improper third party contact, the frequent response is, “we called their neighbor because we didn’t know where your client was located.” My response is usually, ”if you didn’t know where they were located, how did you know who their neighbor was? If you were able to find their neighbor, it seems you had previously located them just fine.” In my opinion when debt collectors start calling third parties, there is almost always a violation of the FDCPA that has or will take place!
The statute also has clear restrictions on debt collectors contacting consumers at work. The statute prohibits calling consumers at their place of employment when either they know, or have reason to know, that the consumer’s employer prohibits personal calls or that the consumer doesn’t want to be contacted at work. So, if you are getting calls at your place of employment by a third party debt collector, tell them to stop calling you there. Alternatively, if you are getting calls by third party debt collectors at your residence or on your cellular phone and are afraid they are going to start calling you at work; tell them the next time you speak to them to never call you at work. If after telling the agency this they call you at work, they have violated the FDCPA and you have the right to sue for damages. The prohibition against work place telephone calls is simple; if you’re getting calls at work when you’re not allowed to you will likely get fired. If you get fired you can’t pay your debts. As such, the statute prohibits work place telephone calls if you notify them that you are prohibited from receiving them or if you simply don’t want to be contacted at work.
The statute also prohibits debt collectors from threatening any action against you that they are not permitted to take and prohibits them from threatening anything they don’t intend to take. So, since we’ve already established that the debt collector is prohibited from contacting your friends and family members if they know how to locate you, it would be a violation for a debt collector to threaten you that if you don’t pay your debt they will contact your father, human resource department, etc. Since the statute prohibits them from doing so (especially since they have already “located” you since they would be threatening this while they were talking to you on the telephone) this would be a violation of the FDCPA. Likewise, they are not allowed to threaten you with action they don’t intend to take. An example of this is threatening to refer your debt to an attorney, sue you, seek garnishment of your wages, etc. if they don’t intend to actually do so. It should also be noted that a debt collector that is not an attorney is never allowed to threaten to sue you since they are not permitted to practice law. The decision to sue someone is a legal decision that can only be made by attorneys.
The statue also prohibits collection calls before 8am or after 9pm. The statute prohibits debt collectors from calling repeatedly and it prohibits the use of profane language. Lastly it prohibits debt collectors from engaging in any conduct the natural consequence is to harass, oppress, or abuse any person. This is a pretty broad restriction and is the basis for a good amount of FDCPA lawsuits.
So, you’ve been victimized by the debt collectors, now what? Now you hire an experienced FDCPA attorney and put those debt collectors in their place. The statute provides a maximum of $1,000.00 in statutory damages, uncapped actual damages, and forces the debt collector to pay your attorney fees.
If you think a debt collector has violated the FDCPA, call us at 866-339-1156 or log on to www.fairdebthelpers.com and let us know what happened.
Jeffrey Hyslip
November 22nd, 2008 at 8:14 pm
FDCPA does not protect business owners who have personally guaranteed debts. Also a business owner can not represent the corporate entity in a court of law. A corporate entity must be represented by and attorney in court. what FDCPA is available to protect a business owner from harassing and threatening debt collection prarctices?
December 15th, 2008 at 3:27 pm
As you stated the FDCPA does not regulate commercial or business debts. You would need to look at individual state laws to determine if there is any available remedy for you. I only practice Fair Collection Law under the FDCPA. I’m sorry I’m unable to give you a direct answer.
If I were you I would contact your local bar association and tell them you want a commercial attorney to assist you with harassing telephone calls. I am sure they will be able to refer you to an appropriate attorney.