Things you should know about the Fair Debt Collection Practices Act

Debt collectors have been known to harass consumers by using abusive, unfair, and deceptive practices in order to collect debts owed. Due to their widespread use, the Fair Debt Collection Practices Act (“FDCPA”) was designed to stop debt collectors from using these abusive and harassing practices when debt collectors attempt to collect legitimate outstanding debts. The FDCPA accomplishes this by placing limitations on how and when debt collectors can contact consumers and third parties. The FDCPA applies to familial and personal debts such as those associated with the purchase of an automobile or costs associated with medical expenses.

When and How a Debt Collector can Contact Consumers and Third Parties

Section 804 of the FDCPA states the requirements a debt collector must follow when contacting a third party in order to determine the specific location of the consumer. One such requirement is that the debt collector may communicate with a third party only once, unless there is a reasonable belief that the statements provided during the first call were false or unless the third party requests to be contacted more than once. Further, an additional requirement is that the debt collector cannot reveal to a third party that the consumer owes any such debt.

Sections 805 and 806 state how a debt collector can communicate with the consumer. This section determines what times and places are appropriate for a debt collector to call, who to call if the consumer is represented by an attorney, whether the consumer can be called at their place of employment and when communication must cease. Such requirements prevent the debt collector from:

• Threaten you in any way;
• Harass you in any way;
• Leave ANY voicemail that does not: 1. identify the collector; 2. Identify the company and 3. State that any information will be used for debt collection purposes;
• Calling on a repeated and continuous basis/excessive calls (every day or 2-3 times in a single day);
• Calling prior to 8 a.m. and after 9 p.m
• Informing a third party about your debt or leaving a message that a third party hears;
• Contacting the consumer at work when it is known that the employer prohibits such communications or after the collector is told not to;
• Attempting to continue collecting after a notice to stop communication has been given either orally or by written communication;
• Using language that is obscene, profane or abusive
• Threatening or using violence to collect, etc

Current Prevalence of Abusive and Harassing Debt Collection Practices

Since the recession hit, the debt collection industry has increased with more agencies entering the market. These agencies are working harder to collect on these debts. As collectors work harder to collect the number of calls they make increases. With the increase in the number of agencies and the number of calls, the complaints of abusive practices have increased as well. Consumer complaints about the practices of debt collectors reached an all-time record high in 2011, with the Federal Trade Commission receiving over 180,000 complaints. This is a tremendous increase from the approximately 105,000 complaints received in 2008.

Despite the increase in the number of debts that lead to the increase in the number of debt collectors, the profitability of debt collection has fallen. Due to this decreased profitability, there is now an increased need for the debt collectors to actually collect. Since this is the case some debt collectors began using illegal or aggressive tactics, tactics that violate the FDCPA.

Who Pays the Costs of Litigation?

It is very important to discourage these abusive practices and the primary mechanism to do so is to start a FDCPA lawsuit, however there is the concern that a recent Circuit Court decision on appeal to the Supreme Court will cause consumers to be discouraged from suing debt collection agencies. In Marx v. General Revenue Corp., a case currently before the Supreme Court, the U.S. Court of Appeals for the Tenth Circuit ordered the plaintiff to pay the debt collectors costs to defend the lawsuit even though it was determined that she filed the case in good faith.

However, this should not discourage consumers from filing suits under the FDCPA. There has been a history of debt collectors absorbing the costs of “good faith” FDCPA cases. An amicus brief has been filed in the U.S. Supreme Court stating that the Tenth Circuit's decision was inconsistent with the FDCPA. The FDCPA states that if a consumer wins a lawsuit they can recover litigation costs from the debt collector. However, if the consumer loses they only pay the debt collectors litigation costs if the suit was filed in bad faith or for harassment purposes. 

Claims under the FDCPA can become quite complicated very quickly. Collection agencies also have swarms of attorneys with nearly endless experience and significant resources to exploit against you. This is why you need to retain an even more experienced and more resourceful FDCPA attorney to represent you with you claim. Here at Krohn and Moss, we have been representing clients throughout the United States since 1995. We have an intimate understanding of the law and compassionately represent our clients. Using the law to our advantage, our clients do not pay our attorneys’ fees under the FDCPA, only minimal court costs and filing fees we are ethically required to seek.

If you or a loved one believes to be a victim of malicious and wrongful conduct under the FDCPA, please contact us immediately. Call us toll free at 1-800-875-3666 or visit our website for a FREE case review and evaluation at http://www.krohnandmoss.com.