If you are struggling to pay your bills on time, or if creditors mistakenly think you owe them money, you may be receiving numerous calls from debt collectors. No matter how much you owe, collectors are required by law to treat you with honesty, respect and fairness. Anyone trying to collect on a debt who acts otherwise is breaking the law. It's important for you to know your rights and how to protect yourself from these illegal practices.
Here are a few Frequently Asked Questions regarding consumer rights and steps to guard against illegal abuse or harassment from debt collectors. If you have been harassed by debt collectors or think you have had your rights violated in any way, contact us immediately. We may be able to assist you in combating collectors who have broken the law.
What laws protect consumers from harassment by debt collectors?
There are two major laws, one federal and one state. The federal Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors' use of abusive, threatening or deceptive behavior in collecting on debts. You can bring a lawsuit against any debt collector who violates your rights under the FDCPA, allowing you to recover any actual damages, statutory penalties of $1,000, plus attorneys' fees.
In California, the Rosenthal Fair Debt Collection Practices Act (RFDCPA) extends the protections of the federal law to cover nearly every kind of debt collector and every kind of debt - credit cards, car loans, mortgages, home equity loans, and others. Each violation of the federal law is also a violation of the RFDCPA and adds another $1,000 in penalties, plus actual damages and attorneys' fees.
If you don't live in California, your own state probably has a debt collection law, too. You should get in touch with an experienced attorney in your state to find out what protection you have in addition to the federal law.
Our firm represents many people just like you who have been harassed and lied to by creditors and debt collectors. The initial consultation is always free of charge. If we agree to represent you, you won't pay any attorneys' fees unless we recover on your behalf.
Who is considered a Debt Collector?
According to the FDCPA, a debt collector is any person, other than the original creditor, who regularly collects debts owed to others and includes attorneys, collection agencies or third party companies that buy delinquent debts and try to collect on them.
The Rosenthal Act broadens the definition of a debt collector to include the original creditor if he collects on a regular basis and to persons who compose or sell (or offer to do so) forms, letters and other collection materials used or intended to be used for debt collection.
Creditors and debt collectors subject to California law are also subject to the federal law. If you live in California, you're protected by both laws.
Do the FDCPA and RFDCPA cover all of my debts?
Both laws cover any debt that is primarily from a consumer marketplace transaction for personal, family and household purposes. Debts like credit cards, auto loans, medical bills, and mortgage payments are considered consumer debts. These laws generally do not cover debts incurred to run a business or instances such as car accidents or marital dissolution. Alimony, child support, criminal fines, and tort claims are generally not considered debts within the meaning of these acts.
If you have a question as to whether these laws apply to your debt, contact our office today.
When and where can a debt collector contact me?
You have the right to determine when and where you wish to be contacted. A debt collector CAN NOT contact you at times or places that are unusual or that they know are inconvenient for you. They may not contact you before 8 in the morning or after 9 at night or during work hours if you have expressed to them that that you can not take calls at work (orally or in writing),
How can I get a debt collector to stop calling me?
The FDCPA/RFDCPA give you the right to tell the collector to stop contacting you. If you send a written request to a debt collector demanding that they cease contact, the debt collector must stop contact immediately. They may send one last communication advising that they are ceasing contact or that they intend to take a specific action against you, including filing a lawsuit.
It is important to note that while this action legally requires the collector to cease from further contact, it does not wipe out the debt. The creditor or debt collector may still take legal action against you even if you send them a cease and desist letter. But aside from that one communication, they must stop calling and writing. If they don't, they're breaking the law.
Steps to sending a cease and desist letter
1. Make sure that you have the right address for each creditor. Your letter should also include your name, address and account number for the debt. You need to send one letter for each individual debt.
2. Make a copy of your letter.
3. Send the original letter by certified mail, and pay for a "return receipt" so you'll be able to document when it was received by the collector. Be sure you track which receipts are for which letters.
4. Save the postcard when it comes back to you in a few days and put it with the copy of the letter you sent. This proves that they got the letter and what the letter said.
Can a debt collector contact someone else about my debt?
If an attorney is representing you about the debt, the debt collector must contact the attorney, rather than you as soon as he has notice that you are represented. Debt collectors cannot speak to anyone other than your or your attorney about your debts, including family members, neighbors, co-workers, or your boss. They are permitted to contact another party one time in an effort to locate you if they are unable to reach you, but even then they cannot tell anyone why they are calling.
What is the debt collector required to tell me about my debt?
At the first contact, oral or written, the debt collector must describe the purpose of the communication and inform the consumer that any information obtained will be used for that purpose.
Within five days after you are first contacted, a debt collector must send you a written validation notice clearly stating the amount of the debt and the name of the creditor. The debt collector must also tell you in writing that you can dispute the debt and request that they provide documentation of its validity.
You will have 30 days from the receipt of this letter to dispute the validity of the debt either verbally or in writing. If you do dispute the validity, they must stop all collection efforts until they give you written proof that the debt is valid.
Does the FDCPA protect me if I owe the debt?
Even if you owe the debt, or you cannot pay, you still have legal rights, but you must act fast in order to preserve these rights. It is important to keep good records of all of the contact made to you by collectors, particularly if you have sent them a cease and desist request. This includes saving all written correspondence and voice messages and recording details of every phone call.
Once you have substantial evidence against the collectors, you should seek advice from an attorney with experience in this field of law. Many attorneys have never heard of the FDCPA or the RFDCPA and will tell you that you don't have a claim. Before you surrender to your creditors, get advice from someone who has experience and knows the law.
Our firm represents many people just like you who have been harassed and lied to by creditors and debt collectors. The initial consultation is always free of charge. If we agree to represent you, you won't pay any attorneys' fees unless we recover on your behalf.
Can a debt collector continue to contact me if I dispute the debt?
If you dispute a debt in writing within the 30-day validation period, a debt collector cannot continue to contact you to collect on the debt until they have sent you proof and any further information you request about the details of the debt. According to state law, they also must notify any credit reporting agencies that the debt has been disputed.
What practices are prohibited according to the FDCPA?
Harassment.
Debt collectors may not harass, oppress, or abuse any person. This includes:
· Use of threats of or actual violence or harm to the person, property or reputation.
· Publishing a list of names of consumers who refuse to pay their debts (with the exception of credit reporting companies).
· Use of obscene, insulting or profane language.
· Repeated use of the telephone to annoy someone or leaving abusive messages.
· Failure to identify oneself.
False statements.
Debt collectors may not lie when trying to collect a debt. This includes:
· False claims that they are an attorney or government representative.
· Use of a false company name or misrepresentation of the true nature of the business of the collector.
· False claims that you have committed a crime.
· Falsely representing that they operate or work for a credit reporting company.
· Misrepresentation of the amount owed or legal status of the debt.
· Indication that papers sent you are legal forms or an official document from a court or government agency when they aren't.
· Indication that papers sent you aren't legal forms when they are.
Threats
A debt collector may not threaten when trying to collect a debt. This includes threats such as:
· You will be arrested if you don't pay your debt.
· They will seize, garnish, attach, or sell your property or wages unless they are permitted by law to take the action and intend to do so.
· They will take legal action against you, if doing so would be illegal or if they don't intend to take the action.
· You will be subject to additional fees or payments if you do not pay your debt, unless such fees are permitted by law.
Deception
Debt collectors may not use deception when trying to collect a debt. This includes deception such as:
· Sending you anything that looks like an official document from a court or government agency when it is not.
· Giving false credit information about you to anyone.
· Using a fake or false name, unless that name is allowed by state law and properly registered with the state, if required.
Unfair practices
Debt collectors may not engage in unfair practices when they try to collect a debt. This includes:
· Collecting any interest, fee, or other charge on top of the amount you owe unless the contract that created your debt - or your state law - allows the charge.
· Depositing a post-dated check early.
· Making you accept collect calls or pay for telegrams or long distance calls.
· Taking or threatening to take your property unless it can be done legally.
· Contacting you by postcard or other method that publically displays that the communication is related to a debt.
· Applying debt payments you send to debts that you do not instruct them to pay. A debt collector must apply payments on multiple debts in the order you direct.
Can a debt collector garnish my bank account or wages?
Only an attorney licensed in your state of residence can actually sue you on behalf of a creditor to obtain a garnishment order against you. If you do not pay a debt, a creditor or its debt collector has the right to hire an attorney to sue you to collect. Such a judgment directs a third party, like your bank or employer, to turn over funds from your account or wages to pay the debt.
If you receive a lawsuit summons DO NOT IGNORE IT. Contact a lawyer immediately.
It is forbidden for a debt collector to get you fired from your job, embarrass you, or humiliate you to get you to pay a debt.
Can federal benefits be garnished?
Many federal benefits are exempt from garnishment, but federal benefits may be garnished under certain circumstances, including to pay delinquent taxes, alimony, child support, or student loans. Benefits exempt from garnishment include:
· Social Security Benefits
· Supplemental Security Income (SSI) Benefits
· Veterans' Benefits
· Civil Service and Federal Retirement and Disability Benefits
· Service Members' Pay
· Military Annuities and Survivors' Benefits
· Student Assistance
· Railroad Retirement Benefits
· Merchant Seamen Wages
· Longshoremen's and Harbor Workers' Death and Disability Benefits
· Foreign Service Retirement and Disability Benefits
· Compensation for Injury, Death, or Detention of Employees of U.S. Contractors Outside the U.S.
· Federal Emergency Management Agency Federal Disaster Assistance
