Overview.
The Fair Debt Collection Practices Act (FDCPA)
was enacted to protect creditors and debtors. The
FDCPA outlines for creditors/collectors the legal
way to communicate with the debtor and collect the
debt. This protects the creditors from complaints
and the debtor from harassment. Outline below are
some of the pertinent parts for the FDCPA
§ 804. Acquisition of location information [15 USC
1692b]
Any debt collector communicating with any person
other than the consumer for the purpose of acquiring
location information about the consumer shall --
- identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;
- not state that such consumer owes any debt;
- not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
- not communicate by post card;
- not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and
- after the debt collector knows the consumer is
represented by an attorney with regard to the
subject debt and has knowledge of, or can readily
ascertain, such attorney's name and address, not
communicate with any person other than that
attorney, unless the attorney fails to respond
within a reasonable period of time to the
communication from the debt collector.
§ 805. Communication in connection with debt collection [15 USC 1692c]
(a) COMMUNICATION WITH THE CONSUMER GENERALLY.
Without the prior consent of the consumer given
directly to the debt collector or the express
permission of a court of competent jurisdiction, a
debt collector may not communicate with a consumer
in connection with the collection of any debt --
- at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the consumer's location;
- if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
- at the consumer's place of employment if the
debt collector knows or has reason to know that the
consumer's employer prohibits the consumer from
receiving such communication.
(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
(c) CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the
§ 806. Harassment or abuse [15 USC 1692d]
A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress,
or abuse any person in connection with the
collection of a debt. Without limiting the general
application of the foregoing, the following conduct
is a violation of this section:
- The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
- The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
- The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3)1 of this Act.
- The advertisement for sale of any debt to coerce payment of the debt.
- Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
- Except as provided in section 804, the placement
of telephone calls without meaningful disclosure of
the caller's identity.
§ 807. False or misleading representations [15 USC 1962e]
A debt collector may not use any false, deceptive,
or misleading representation or means in connection
with the collection of any debt. Without limiting
the general application of the foregoing, the
following conduct is a violation of this section:
- The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
- The false representation of --
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt. - The false representation or implication that any individual is an attorney or that any communication is from an attorney.
- The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
- The threat to take any action that cannot legally be taken or that is not intended to be taken.
- The false representation or implication that a
sale, referral, or other transfer of any interest in
a debt shall cause the consumer to --
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this title. - The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
- Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
- The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
- The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
- The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
- The false representation or implication that accounts have been turned over to innocent purchasers for value.
- The false representation or implication that documents are legal process.
- The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
- The false representation or implication that documents are not legal process forms or do not require action by the consumer.
- The false representation or implication that a
debt collector operates or is employed by a consumer
reporting agency as defined by section 603(f) of
this Act.
§ 808. Unfair practices [15 USC 1692f]
A debt collector may not use unfair or
unconscionable means to collect or attempt to
collect any debt. Without limiting the general
application of the foregoing, the following conduct
is a violation of this section:
- The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
- The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
- The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
- Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
- Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
- Taking or threatening to take any nonjudicial
action to effect dispossession or disablement of
property if --
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement. - Communicating with a consumer regarding a debt by post card.
- Using any language or symbol, other than the
debt collector's address, on any envelope when
communicating with a consumer by use of the mails or
by telegram, except that a debt collector may use
his business name if such name does not indicate
that he is in the debt collection business.
§ 809. Validation of debts [15 USC 1692g]
(a) Within five days after the initial communication
with a consumer in connection with the collection of
any debt, a debt collector shall, unless the
following information is contained in the initial
communication or the consumer has paid the debt,
send the consumer a written notice containing --
- the amount of the debt;
- the name of the creditor to whom the debt is owed;
- a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
- a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
- a statement that, upon the consumer's written
request within the thirty-day period, the debt
collector will provide the consumer with the name
and address of the original creditor, if different
from the current creditor.
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
§ 810. Multiple debts [15 USC 1692h]
If any consumer owes multiple debts and makes any single payment to any debt collector with respect to such debts, such debt collector may not apply such payment to any debt which is disputed by the consumer and, where applicable, shall apply such payment in accordance with the consumer's directions.
§ 811. Legal actions by debt collectors [15 USC
1692i]
(a) Any debt collector who brings any legal action
on a debt against any consumer shall --
- in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
- in the case of an action not described in
paragraph (1), bring such action only in the
judicial district or similar legal entity --
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
(b) Nothing in this title shall be construed to authorize the bringing of legal actions by debt collectors.
§ 812. Furnishing certain deceptive forms [15 USC 1692j]
(a) It is unlawful to design, compile, and furnish
any form knowing that such form would be used to
create the false belief in a consumer that a person
other than the creditor of such consumer is
participating in the collection of or in an attempt
to collect a debt such consumer allegedly owes such
creditor, when in fact such person is not so
participating.
(b) Any person who violates this section shall be
liable to the same extent and in the same manner as
a debt collector is liable under section 813 for
failure to comply with a provision of this title.
§ 813. Civil liability [15 USC 1692k]
(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of --
- any actual damage sustained by such person as a result of such failure;
- (A) in the case of any action by an individual,
such additional damages as the court may allow, but
not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and - in the case of any successful action to enforce
the foregoing liability, the costs of the action,
together with a reasonable attorney's fee as
determined by the court. On a finding by the court
that an action under this section was brought in bad
faith and for the purpose of harassment, the court
may award to the defendant attorney's fees
reasonable in relation to the work expended and
costs.
(b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --
(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional.
(c) A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
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