Supreme Court tackles case about collection of old debt

Yesterday, the U.S. Supreme Court heard arguments in a Fair Debt Collection Practices Act case involving an old debt that was past the statute of limitations. It’s not often that the Supreme Court hears a FDCPA case, so I thought it would be worth digging into a bit. Plus, the issue involved in the case is one that affects consumers everywhere.

Case background

The consumer, Aleida Johnson, filed a Chapter 13 bankruptcy. In a Chapter 13, the person typically pays a portion of each of her debts and the remaining amount of the debts is wiped out. The amount of each debt that gets paid depends on the person’s income and assets. For a creditor to qualify to have some of its debt paid back, it has to file a “proof of claim” with the bankruptcy court. The proof of claim is just the basic information about the account, such as the amount, the date the account was opened, and so forth.

In Ms. Johnsons’s case, a debt buyer named Midland Funding filed a proof of claim with the bankruptcy court for a debt that was over ten years old.  The debt was so old that it was past the statute of limitations, which is the amount of time, by law, that a creditor has to start a lawsuit to collect an unpaid debt. In Ms. Johnson’s case, which arose in Alabama, the statute of limitations for suing on unpaid debts is six years. So there was no dispute that Midland could no longer bring a lawsuit to collect the old debt.

Many courts have ruled it is a violation of the FDCPA for a debt collector to file a lawsuit on an old debt that is past the statute of limitations. The related issue that the Supreme Court has to decide is whether it is a FDCPA violation for a debt collector to file a proof of claim in bankruptcy court on a debt that is past the statute of limitations. A decision in the case isn’t expected until June of 2017, but some of the Justices’ comments were revealing:

JUSTICE SOTOMAYOR: I’m having a great deal of difficulty with this business model…You buy old, old debts that you know for certainty are not within any statute of limitations…And apparently, you collect on millions of dollars of these debts. 

JUSTICE ALITO: If your description of Midland’s business model is correct, it doesn’t seem to me that it has much, if any, social utility.

The case, of course, will ultimately turn on the legal question involved, but these comments show that some of the Justices are skeptical of Midland’s business model.

What you need to know about the collection of old debt

If you’re facing debt collection on a debt that is more than a couple of years old, the first thing you should do is figure out how long the statute of limitations is. Remember, the statute of limitations is the amount of time set by law for a creditor to start a lawsuit against you. In Minnesota, for example, the statute of limitations for most debt collection lawsuits is six years. This means that the lawsuit only has to be started within six years. It doesn’t mean that the lawsuit has to be finished within six years.

Once you know what the statute of limitations is, you need to determine when it starts to run in your case. Generally, the statute of limitations begins to run on the first day that you are in default on your account. A quick way to figure out when your account went into default is to determine the date that you made your last regular payment. Although this won’t always be a precise date that the statute of limitations began to run, it’s a good estimate.

When you know the applicable statute of limitations and the date it started in your case, the rest is just simple math. Using Minnesota’s six-year statute of limitations as an example again, if you defaulted on your account on December 15, 2011, the creditor must start the lawsuit against you no later than December 15, 2017.

If the creditor doesn’t start the collection lawsuit within the statute of limitations, it loses its ability to use the judicial process to collect the debt. This doesn’t necessarily mean that the creditor can’t call or write you to collect the debt. In Minnesota, a debt collector may collect a debt that is past the statute of limitations. But it can’t threaten to sue you or sue you for an old debt that is past the statute of limitations. And if the debt is more than seven years old, it can’t be reported to the credit bureaus.

If the debt collector brings a lawsuit on a debt that is past the statute of limitations (or time-barred as some courts say), you have an absolute defense to the collection lawsuit. You need to raise this defense in your answer or it may be waived. Also, it’s your burden to prove that the statute of limitations is up and you may need to gather some evidence first. But this is a powerful defense that, if proven, will result in the debt collector’s case being thrown out.

In addition, many courts have held that a debt collector violates the FDCPA when it threatens to bring or brings a lawsuit for an old debt that is past the statute of limitations. When a debt collector violates the FDCPA, you have the right to sue them and the law provides that the collector has to pay you up to $1,000, plus any provable actual damages–such as emotional distress. Further, the debt collector has to pay your attorney fees and costs. So if everything goes your way, you could get the debt wiped out and get some money back from the debt collector.

A quick summary of the law on the collection of old debt

(1) In Minnesota, a debt collector can attempt to collect a debt past the statute of limitations through phone calls, letters, or similar methods. This rule may be different in other states.

(2) A debt collector in Minnesota cannot, however, threaten to sue you or sue you for a debt that is past the statute of limitations. This is also true in most other states.

(3) A debt collector cannot put a debt that is more than seven years old on your credit report. This is true everywhere. I would also take the position that a debt collector cannot even threaten to report a debt that is past the statute of limitations.

(4) Until the Supreme Court decides the Midland Funding case, it is unclear whether a debt collector can file a proof of claim in a Chapter 13 bankruptcy and receive payment through the bankruptcy process. But we should definitively know the answer to this question in the next six months or so.

 

 

CFPB issues report on consumers’ experiences with debt collectors

Last week, the Consumer Financial Protection Bureau issued a report titled “Consumer Experiences with Debt Collection.” The report was based on survey data collected between December 2014 and March 2015 from consumers who were contacted by debt collectors. The Bureau touts the survey as providing a more comprehensive picture of consumers’ experiences with debt collection than has been available from other debt sources.

Here are some of the findings I thought were noteworthy:

Nearly one-third of all consumers have been contacted by a debt collector. 32 percent all consumers reported being contacted by a debt collector about a debt within the past year. About 75 percent of these consumers were contacted about more than one debt.

Low income and non-white consumers are more likely to experience debt collection efforts. Over half of consumers with annual household income of less than $20,000 reported being contacted about a debt in collection, compared with only 16 percent for those with household incomes of $70,00 or more. Similarly, more than 40 percent of non-white consumers reported having been contacted by a debt collector, compared with 29 percent of white consumers.

Credit cards, student loans, and medical bills were the most common types of debt. The survey separates the types of debts into two categories: “loans” such as student loans, auto loans, and credit cards; and “past-due bills” such as medical bills and utility bills. Among consumer contacted about “loans,” 44 percent were contacted about a credit card and 28 percent were contacted about a student loan. On the “past-due bills” side, nearly 60 percent of people were contacted about a medical bill.

One in seven people in collections were sued to collect the debt. 15 percent of consumers with a debt collection experience reported that they were sued by a creditor or debt collector during the preceding year. Only about one-quarter of these people reported attending a court proceeding.

Over one-third of people contacted by collectors were contacted four or more times per week. 37 percent of people who were contacted by a debt collector reported that they were contacted four or more times a week. 17 percent reported that they were contacted eight or more times week.

Debt collectors honored a request to stop contact only 25 percent of the time. 42 percent of consumers who were contacted by a debt collector requested that the collector stop contacting them. However, the collector stopped the contacts in only 25 percent of those cases.

Nearly 30 percent of consumers reported being contacted about a debt they didn’t owe. According to the survey, 28 percent of consumers who had been contacted by a debt collector reported that at least one debt was being collected that the consumer believed wasn’t owed. One-third of consumers who had been contacted said the collector was trying to collect the wrong amount.

I talk to people in debt collection nearly every day and these findings are consistent with my conversations and anecdotal observations. I strongly believe that when dealing with debt collectors, knowledge is power. Take some time to learn about the collection process and your rights. Here’s some suggestions to get you started in learning more:

(1) educate yourself about your rights under the Fair Debt Collection Practices Act, which governs what debt collectors can and can’t do. If you feel like a debt collector has broken the law, consider filing a complaint with the CFPB or talking to an attorney about suing the collector under the FDCPA.

(2) if you just want to pay the debt, learn how to best negotiate a settlement with a collector.

(3) if you’re handed a collection lawsuit, always answer it by the appropriate deadline to avoid a default judgment.

(4) after answering the collection lawsuit, learn the typical next steps and how to approach them.

(5) if a collection judgment gets entered against you, know what your options are to minimize the damage.

(6) if you’re being garnished by a collector, learn more about the process and your rights.

 

 

Recovering from identity theft

Identity theft happens when someone uses your personal information to open new accounts or makes unauthorized charges on your existing accounts. According to the most recent data from the Bureau of Justice Statistics, 17.6 million people were victims of identity theft in 2014. That’s approximately 7% of all U.S. adults, age sixteen or older. Here are some tips on how to spot identity theft and what to do if you’ve become a victim of it.

How to spot identity theft

Identity TheftGet in the habit of regularly reviewing your credit reports. The Fair Credit Reporting Act (FCRA) gives you the right to one free credit report every year from each of the three main credit reporting agencies: Equifax, Experian, and Trans Union. You can obtain these free reports from the website AnnualCreditReport.com. This is the only website where you can get your free report. Watch out for imposter websites. If you request the three reports separately and stagger them every four months or so, you can monitor your credit throughout the year at no charge. Consider using this staggering technique before paying for a credit monitoring service.

Once you have your credit report, look for incorrect personal info, such as addresses you never lived at, inaccurate social security number, or incorrect middle names or nicknames. These may be signs of identity theft. You should also look for accounts that you didn’t open or for credit report inquires from companies you never applied for credit from. Any accounts you don’t recognize should be red flags. Also, if the balances on your existing accounts appear to be much higher than you think they should be, that could be a sign of unauthorized or fraudulent charges.

In addition to reviewing your credit reports, you should get in the habit of checking the monthly billing statements for all of your existing accounts for suspicious charges. It’s also important that you don’t ignore bills for accounts you don’t recognize or debt collection letters or calls for debts you don’t think you owe. While it’s tempting to assume that these bills or collection efforts are a mistake and will go away, they may very well be a signal that someone has stolen your identity.

Call the companies where you know fraud has occurred

If you spot unauthorized charges on your existing accounts or fraudulently-opened new accounts, you should contact those creditors immediately. It’s best to contact the company’s fraud department and ask them to freeze or close the account. Make a note of who you talked to and the date you talked to them and keep it for your records.

Place a fraud alert on your credit reports

The next step is to place an initial fraud alert on your credit reports. All three of the main bureaus–Equifax, Experian, and Trans Union–allow you to do this online. A fraud alert is free and it makes it more difficult for someone to open new accounts in your name. An initial fraud alert lasts for 90 days and requires creditors to take reasonable steps to confirm your identity before opening a new account. If you provide a phone number with an initial fraud alert, creditors will contact you before opening a new account.

You may also consider placing an extended fraud alert on your credit reports. An extended fraud alert lasts for seven years and requires lenders to contact you in person before opening a new account. You may also think about a credit freeze. A freeze stops anyone from accessing your credit report until you lift the freeze. Under Minnesota law, victims of identity theft can place a credit freeze for free. Non-victims must pay a fee of $5.

File an Identity Theft Report with the Federal Trade Commission (and consider filing a police report)

You should also file an Identity Theft Report with the FTC, which can be done online at IdentityTheft.gov. After filing the report, the website will create a recovery plan for your situation. You should print the Identity Theft Report and recovery plan for your records. You can also create an account after you file the report, so that you can access your report and recovery plan later.

After you file the report with the FTC, you should consider filling a police report too because identity theft is a crime. Contact your local police department and tell them you want to report that someone stole your identity. You should give them proof of identity, proof of your address, a copy of your FTC report, and all of the information you have about the identity theft. Make sure to get a copy of the police report and keep it for your records.

Close fraudulently-opened accounts and remove unauthorized charges to existing accounts

Make a list of all the accounts opened by the identity thief and any suspicious charges to your existing accounts. Call the fraud department for each of these creditors and provide them with a copy of the FTC Identity Theft Report and police report (if you have one). Ask that all fraud accounts be closed immediately and that any unauthorized charges be reversed. Ask for confirmation in writing that the account is closed or charges are reversed and that you don’t have any liability for these accounts or charges. Keep copies of these letters.

Write dispute letters to the credit bureaus for all fraud accounts showing on your credit report

Write a letter to each of the big-three credit bureaus (Equifax, Experian, and Trans Union). Tell them about every single account that was opened through identity theft. A good way to do this is to send them a copy of your credit report and circle or star all the fraudulent accounts. Include a copy of your FTC Identity Theft report and police report if you have one. Make sure to request in your letter that they block all of these accounts from your credit reports. A good sample letter can be found at the FTC website. Keep copies of these letters, as well as copies of the responses you get from the credit bureaus.

If you get collection calls for letters for fraud accounts, notify the debt collector of the identity theft

It’s no surprise that most identity thiefs don’t make payments on the debts they rack up in your name. As a result, many identity theft victims receive collection calls and letters from debt collectors. If this happens, notify the debt collector in writing that you are a victim of identity theft and that you don’t owe the money they are trying to collect. Send them a copy of your FTC Identity Theft Report, police report, and any letters from the creditor confirming that you don’t owe money. Keep a copy of your letter and any collection letters you get in response. It’s also a good idea to keep a call log of all the collection calls and messages you get.

Contact an attorney if the fraud accounts aren’t removed from your credit reports after you dispute them, or if a debt collector keeps contacting you after you’ve told them about the identity theft

If the credit bureaus don’t remove the fraud accounts after you dispute them in writing, or if debt collectors continue to hound you after you’ve told them about the identity theft, you should contact a consumer attorney in your state to discuss the situation in depth. There are powerful laws, such as the Fair Credit Report Act and Fair Debt Collection Practices Act, that can be used against credit reporting agencies, creditors, and debt collectors who don’t follow the law. A consumer attorney can help clean up your credit report and stop collection calls, as well as discuss any legal claims that you may have to hold wrongdoers accountable for breaking the law.

 

Featured photo by Don Hankins /  C.C. 2.0

Common credit reporting errors: the “mixed file”

Unfortunately, many credit reports contain errors. One common type of credit report error is the mixed file. A “mixed file” is a term used to describe a credit report when credit information for one person is placed on the credit report of another person, creating a false description of the person’s credit history.  Occasionally, this problem is caused by the “furnisher” of credit information (ie. a bank or credit card company). For example, a bank may incorrectly report that a spouse is responsible for a mortgage loan that was only in his wife’s name.

Mixed fileMore often, a mixed file is caused by the way credit reporting agencies match data to a consumer’s file to create his credit report. Credit reporting agencies get mountains of credit data from creditors and public records. This data is then matched to an individual consumer’s credit report through identifying information such as name, address, and social security number. Mixed files occur when the credit reporting agency’s computer doesn’t correctly match the identifying information in the credit data to the identifying information in the credit report. The credit reporting agencies closely guard their exact matching criteria and
process, but it appears that commons reasons for mixed files
include:

* Mismatches between generations with the same name (ie. Jr./Sr.)

* People with similar names (ie. Jon Smith / Jonathan Smith)

* People with similar social security numbers

Mixed files are a big problem. According to one study, 44% of consumer complaints to the FTC involved mixed files. It’s a particularly serious problem with the other person’s accounts are delinquent or in collections. This can torpedo your credit score and lead to debt collection calls for a debt you don’t owe. And mixed files are often very difficult to fix because it can be difficult to prove a negative–that the account isn’t yours. You may have to submit birth certificates, social security cards, or sworn statements in order to prove an account doesn’t belong to you.

If your credit report appears to have been mixed with someone else’s, the first step is to write a detailed dispute letter to the credit reporting agency. You may have to follow up with additional information if the credit reporting agency requests more details or documents. Unfortunately, many mixed files are not resolved through the informal dispute process and only a lawsuit can get the credit report cleaned up. If you’ve disputed your mixed file and haven’t gotten it fixed yet, your next step should be to talk to an attorney who is familiar with credit reporting issues and can advise you of your rights under the Fair Credit Reporting Act.

 

Featured photo by kenjoey / C.C. 2.0

Common credit report errors to look for on your report

Your credit report is becoming increasingly important in our data-driven society. Lenders use it to determine your eligibility and terms for all types of credit. Employers may use it to determine whether to hire you. It’s therefore critical to review your credit report on a regular basis to make sure it doesn’t contain any incorrect information. Studies have shown that nearly 80% of credit reports contain a mistake of some kind. Here are some of the common credit report errors:

Incorrect name. Make sure your name is right, especially if your name is relatively common. An incorrect middle name or nickname may be a sign that someone else’s information is incorrectly on your report. For example, if your name is Samuel and you sometimes go by Sam, make sure that the name Samantha isn’t showing on your report.

Inaccurate biographical info. Similarly, make sure that the correct social security number and address appears on your report. Most reports will also list previous addresses. Make sure these are accurate too. If an address you never lived at shows up on your report, that’s a sign that someone else’s info may be on your report.

Mistaken account status. Review each account to be sure that current accounts are not reported as delinquent and that open accounts aren’t showing as closed.

Duplicate reporting. Make sure that accounts aren’t mistakenly listed twice on your credit report. This could lead a lender to believe that you have more debt than you actually do.

Accounts that aren’t yours. Any accounts that don’t belong to you should be an immediate red flag. This mistake is often caused when your file is mixed with another person’s file. It could also be a sign that someone has stolen your identity and fraudulently opened accounts in your name.

If your credit report contains these, or other mistakes, your next step is to notify the credit reporting agency of the errors and ask it to correct them. This dispute will trigger the agency’s duties under the Fair Credit Reporting Act. Normally, credit reporting agencies have 30 days to investigate credit report errors and correct them. Unfortunately, these agencies don’t always take consumer disputes seriously and you may have to dispute multiple times to get the mistake corrected. If you’ve sent multiple disputes and the credit reporting agency still hasn’t corrected your credit report error, you may want to consult with an attorney who handles credit reporting issues. An attorney can advise you about your options to get your inaccurate credit report corrected.

 

Collectors are liable for emotional distress caused by illegal collection tactics

The Fair Debt Collection Practices Act prohibits debt collectors from using false, misleading, abusive, and harassing tactics to collect debts. Under the FDCPA, any person who has been subjected to illegal debt collection practices may sue the debt collector to hold it accountable and enforce the law. If successful, the plaintiff is entitled to $1,000 in statutory damages and the collector must pay her reasonable attorney fees and costs.

More importantly, the collector may also be responsible for compensating the person for any emotional distress that she has suffered from the illegal collection tactics. Commons symptoms of emotional distress caused by illegal collection practices include:

*Crying
*Loss of sleep
*Loss of appetite
*Headaches, vomiting, or stomach pain
*Martial problems
*Problems concentrating at work

While many debt collectors profess cold-hearted skepticism that a person could be so upset by collection efforts, I’ve worked with many clients who suffered from emotional distress symptoms. I had one client who spent many sleepless nights crying in her bedroom because a collector was pursuing her for a debt she already paid. Another client suffered from severe anxiety, nausea, and headaches because a collector pursued her for a debt she didn’t owe. So I know for a fact that  illegal debt collection practices cause emotional distress.

The law says that a collector has to pay for the emotional damage their harassing or abusive collection tactics caused. While medical evidence is usually helpful in proving the extent and cause of the emotional distress, most courts don’t require it. In most cases, it is sufficient for the person to testify in detail about their emotional distress symptoms. Often, a witness, such as a spouse, co-worker, or friend has seen the symptoms and can corroborate the plaintiff’s testimony.

Depending on the severity and duration of the emotional distress, the amount of damages awarded can be significant.

For example, in Fausto v. Credigy, the collector made repeated calls and false threats of credit reporting over a Wells Fargo account. The Faustos believed that they had already paid off the account and told the collectors to stop calling. The collector continued to call–over 90 times in total. At trial the Faustos testified that they had many sleepless nights, an inability to eat, and the stress caused problems within their family. Ultimately, a Northern California jury awarded the Faustos $100,000 for emotional distress caused by the collector’s harassment.

In another case, McCollough v. Johnson, Rodenburg & Lauinger, a collection law firm filed a lawsuit that was barred by the statute of limitations. The law firm, JRL, had information from its client that the suit was time-barred, but continued to prosecute it for 8 months. At trial, McCollough testified that JRL’s wrongful lawsuit caused him anxiety, pain, increased temper, and conflict with his wife. Although McCollough already suffered from a disabling pre-existing condition due a traumatic brain injury, he characterized JRL’s suit as the straw that broke the camel’s back. A Montana jury awarded McCollough $250,000 for the emotional distress caused by JRL.

In another case, Yazzie v. Law Offices of Farrell & Seldin, a collection law firm tried to garnish the wages of Lucinda Yazzie, despite repeated notice that the debt was actually owed by someone else with the same name but with a different social security number. The law firm had changed the social security number in its files from the SSN of the correct account holder, to Ms. Yazzie’s. Farrell & Seldin’s collection attempts continued for three years. The New Mexico jury awarded Ms. Yazzie $161,000 for her emotional distress suffered during the three years of being wrongfully pursued for a debt that wasn’t hers.

Similarly, in Mejia v. Portfolio Recovery Associates, a debt buyer sued the wrong person for a $1,000 credit card account. Ms. Mejia repeatedly told them it wasn’t her debt, but the debt buyer persisted with the lawsuit. Ms. Mejia testified that the lawsuit terrified her and that she feared she would lose her house or be arrested. A Missouri jury awarded Ms. Mejia $250,000 for emotional distress.

Of course, these cases all involved particularly egregious collection conduct and severe emotional distress. Obviously, not every case results in these kind of damages.

But if you’ve endured illegal collection practices that caused you stress, anxiety, fear, or other symptoms of emotional distress, the law may require the collector to be accountable for your suffering.

 

How to stop collection calls to your cell phone

Few things are more annoying than repeated debt collection calls to your cell phone. Often, these calls are made by an automatic dialer. It’s not unheard of for people to get 10 or more of these robocalls per day. This is incredibly frustrating if you rely on your cell phone for work or to keep tabs on your children. The good news is that there are a couple ways to stop these annoying robocalls.

Verbally tell the collector to stop the robocalls

collection calls to your cell phoneYou should first figure out if the collection calls to your cell phone are being made by an autodialer. You can usually spot a robocall if there is a pause or click before a person comes on the line. An automated message is also a clear sign of an autodialed call. If the collection calls are robocalls, there is a powerful federal law called the Telephone Consumer Protection Act that protects you. The TCPA forbids anyone from using an autodialer to call your cell phone without your consent. In most debt collection situations, consent is given in the fine print of the terms and conditions of the credit agreement. Most credit agreements have language buried in them that gives the creditor your consent to robocall your cell phone. This consent is then passed on to the debt collector if you fall behind on your payments.

Fortunately, the TCPA gives you the right to revoke your consent to autodialed calls at any time and in any reasonable way. This includes revoking your consent verbally over the phone. All you have to do is tell the collection representative that you are revoking your consent to robocall your cell phone. Under the TCPA, they have to stop the autodialed calls immediately.

Write a letter demanding that the collection calls to your cell phone stop

Even though you can make the autodialed calls stop by verbally revoking your consent, there are two drawbacks to that approach. First, it can be difficult to prove a verbal statement. Second, the TCPA only allows you to revoke your consent to autodialed calls. The collector is free to continue calling your cell phone as long as they manually dial the calls.

Thankfully, there is another federal law that regulates debt collection calls: the Fair Debt Collection Practices Act. Under the FDCPA, you have the right to stop all calls from a debt collector by writing the collector and requesting that they stop calling you. This letter doesn’t have to be fancy. Just make sure to include your full name and your account number if you have it so that the collector can properly identify your file. All the letter has to say is that you want the collection calls to stop. You should list the all of the phone numbers that you no longer wish to receive calls on. If you want to continue to get collection calls on a certain phone number, you should say so. If you want to only get calls at a certain time, you should say that too. Under the FDCPA, the debt collector has to comply with these requests or face possible legal action.

In some cases, you can sue the collector to make the robocalls stop

Although not all collection calls to your cell phone are against the law, some of them are. And the penalties for illegal autodialed calls are significant. Under the TCPA, the collector must pay you between $500 and $1,500 per call for each offending robocall. The court will also issue an injunction against the collector forbidding further autodialer calls. Here’s how you know if debt collection robocalls are illegal:

(1) The collection calls were made with an autodialer

Under the TCPA, an autodialer is anything that “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” The Federal Communications Commission has made it clear that this definition is very broad and covers most, if not all, of the popular dialing software used by debt collectors.

As technology advances, though, this issue is becoming more complex. Some courts have said that even if an autodialer is involved, if it requires some human intervention to make the call, then the calls aren’t barred by the TCPA. It’s no surprise, therefore, that debt collection industry vendors are currently designing software that requires some human intervention in an effort to evade the TCPA. The FCC, however, has signaled that it doesn’t approve of these efforts to exploit the spirit of the law, so future rule making may be coming.

(2) The robocalls were made to your cell phone

The TCPA only prohibits robocalls to wireless phones. Most autodialed debt collection calls to a landline are permitted.

(3) You’ve revoked your consent OR you never consented in the first place

Robocalls to your cell phone are only illegal if you didn’t consent to them. As noted above, in the context of debt collection consent is typically given in the credit agreement. That consent, however, can be revoked verbally or in writing. Once you’ve revoked your consent, all future robocalls to your cell phone violate the TCPA and you’re entitled to $500 to $1,500 for each illegal call.

It’s also possible that you’ve never given consent for the collection calls to your cell phone. This most often happens when the collector is trying to reach the previous owner of your cell phone number. Because you never consented to any of these wrong-number calls, you can enforce your rights under the TCPA without first revoking your consent.

Debt collectors cannot lie to you

The Fair Debt Collection Practices Act forbids a debt collector from making any false or misleading statements when they are attempting to collect a debt. If a debt collector lied to you, here’s what you need to know about your rights under the FDCPA.

debt collector lied

The FDCPA applies to “debt collectors” collecting “consumer debts”

The FDCPA only covers a debt collector that is collecting a debt for someone else. It does not apply to a creditor collecting its own debts. So if the false statement was made by a bank or credit card company that is collecting its own debts, the FDCPA doesn’t apply. But the FDCPA does apply to collection agencies, debt buyers, and law firms who are collecting debts for someone else.

In addition, the FDCPA only applies when the debt being collected is a consumer debt. This is a debt used for personal, family, or household purposes. If the debt was incurred for a business, the FDCPA doesn’t apply.

Common debt collection lies

Although the FDCPA is clear that virtually any false statement is a violation, there are some collection lies and misleading statements that seem to happen frequently. These include:

*Telling you that you owe a debt that you already paid or that was discharged in bankruptcy

*Threatening to sue or garnish you after the statute of limitations has expired;

*Incorrectly reporting information on your credit report;

*Mis-stating your rights in student loan collections;

*Claiming that you personally owe a debt you have no obligation to pay, such as a debt for an ex-spouse or a deceased relative;

*Incorrectly stating the balance of your account (possibly because of unauthorized fees or uncredited payments);

*Suggesting that they are affiliated with an attorney when they are not;

The false statement probably has to be “material”

Although the FDCPA doesn’t say anything about it, many courts have adopted a rule that the false statement has to be “material.” This generally means that it’s not enough to show merely that the debt collector lied to you. You must also show that they lie impacted your ability to evaluate your options in some way. In my opinion, any statement about the balance of the account, the legal status of the account, your legal rights, or the collector’s legal remedies should be considered material.

If a debt collector lied to you, hold them accountable under the FDCPA

The FDCPA gives consumers the power to sue a debt collector that violates the law. It’s a great way to stop collection harassment cold and to hold the debt collector accountable for its illegal conduct. Under the FDCPA, a successful claim gets you:

* Up to $1,000 in statutory damages (even if you’ve suffered no monetary loss);

* Provable actual damages (including for emotional distress);

* Your attorney fees and court costs must be paid by the collector

Most consumer lawyers, including me, handle FDCPA lawsuits on a contingency fee. This means that you don’t pay us any fees unless I recover money for you and those fees come from the collector’s pocket, not yours. Congress wrote the FDCPA this way to incentivize people to enforce the FDCPA and help the government regulate debt collectors and ensure compliance with the law.

(photo: Joe Penniston)

Can a debt collector call me at work?

The Fair Debt Collection Practices Act strictly regulates collection calls while a person is at work. The Act recognizes that you have a right to keep your personal financial information private and that it’s difficult to maintain that privacy while you’re at the office. If you’re getting collection calls at work, here’s what you need to know.

The FDCPA only applies to “debt collectors” collecting “consumer debts”

The FDCPA only covers a debt collector that is collecting a debt for someone else. It does not apply to a creditor collecting its own debts. So if the calls are from a bank or credit card company that is collecting its own debts, the FDCPA doesn’t apply. But the FDCPA does apply to collection agencies, debt buyers, and law firms who are collecting debts for someone else.

In addition, the FDCPA only applies when the debt being collected is a consumer debt. This is a debt used for personal, family, or household purposes. If the debt was incurred for a business, the FDCPA doesn’t apply.
collection calls at work

Collection calls at work are illegal if the collector knows that your employer prohibits them

The FDCPA doesn’t expressly forbid a debt collector from calling you while you’re at work. But if the collector knows that your employer doesn’t allow you to take calls on the job, then the FDCPA prohibits further calls. For example, let’s say that you’re a nurse and you’re not allowed to make personal calls during your shifts. Knowing this, you tell a collector not to call you at work. Once you’ve told the collector this, any further collection calls while you’re at work probably violate the FDCPA. There’s no special language that you have to use to notify the collector that your employer forbids calls. It’s enough to tell the collector that you can’t talk while you’re at work.

Depending on your job, you may not even be required to tell the collector that you can’t take collection calls at work. For example, some jobs–such as manufacturing, health care, and teaching–so obviously don’t allow the employee to take personal calls at work that a debt collector should know that calls are prohibited without being told.

Collection calls to someone else at your work are almost always illegal

Although the FDCPA doesn’t prohibit all collection calls to you while you’re at work, it does prohibit most calls to someone else at your employer. So most collection calls to your co-workers are illegal, especially if the collector discusses your debt with the co-worker. There is an exception if the debt collector is calling a your employer to enforce a court judgment. For example, a collector may call your human resources department to discuss a pending wage garnishment against you.

How to use the FDCPA to stop illegal collection calls to your workplace

The FDCPA gives you the power to sue a debt collector that violates the law. It’s a great way to stop illegal collection calls to your work and to hold the debt collector accountable for its illegal conduct. Under the FDCPA, a successful claim gets you:

* Up to $1,000 in statutory damages (even if you’ve suffered no monetary loss);

* Provable actual damages (including for emotional distress);

* Your attorney fees and court costs must be paid by the collector

Most consumer lawyers, including me, handle FDCPA lawsuits on a contingency fee. This means that you don’t pay us any fees unless I recover money for you and those fees come from the collector’s pocket, not yours. Congress wrote the FDCPA this way to incentivize people to enforce the FDCPA and help the government regulate debt collectors and ensure compliance with the law.

If you’re dealing with debt collectors, make sure to download and use our free debt collection call log so that you can document all of the debt collectors’ communications. And if the debt collector does anything that you think was unfair; untrue; or harassing, oppressive, or abusive, please contact us to discuss the situation further. We offer a free case review for all FDCPA cases and if we agree to handle your case, you won’t have to pay us any money up front. Our fees come from the money we recover for you if you win your case or accept a negotiated settlement.

(phote: Apreche)

Can a debt collector call my friends and family about my debt?


collection calls to friends and familyThe Fair Debt Collection Practices Act generally forbids collection calls to friends and family. In fact, collection calls to most third-parties are illegal. There are some exceptions to this general rule, though. Here’s what you need to know if a debt collector is talking to someone else about your debt.

The FDCPA only applies to “debt collectors” collecting “consumer debts”

The FDCPA only covers a debt collector that is collecting a debt for someone else. It does not apply to a creditor collecting its own debts. So if the calls are from a bank or credit card company that is collecting its own debts, the FDCPA doesn’t apply. But the FDCPA does apply to collection agencies, debt buyers, and law firms who are collecting debts for someone else.

In addition, the FDCPA only applies when the debt being collected is a consumer debt. This is a debt used for personal, family, or household purposes. If the debt was incurred for a business, the FDCPA doesn’t apply.

The FDCPA generally prohibits a debt collector from “communicating” with a third party

Under the FDCPA, a debt collector “may not communicate, in connection with the collection of any debt, with any person other than the consumer…” Although this language seems straightforward, it’s important to understand what it means to “communicate” under the FDCPA. The Act defines “communication” as the conveying of information about a debt. So a missed call to your boyfriend, without a voicemail, is probably not a communication. But if the collector leaves your boyfriend a message or actually talks to him, it’s likely to be considered a communication for the purpose of the FDCPA.

Communications with certain third parties are allowed

There are a couple of exceptions to the general prohibition against collection calls to friends and family. For example, the FDCPA allows a debt collector to communicate with a couple of different people without violating the law. These people include:

*your attorney

*the debt collector’s attorney

*the creditor (ie. the debt collector’s client)

*the creditor’s attorney

*a credit reporting agency, if otherwise allowed by law (ie. Equifax, Experian, TransUnion, etc);

A collector may also communicate with your employer if it’s reasonably necessary to enforce a court judgment. For example, the FDCPA allows a debt collector to call your employer and confirm that you work their so that they can garnish your wages.

A collector may also communicate with a third-party to learn your contact information

Another exception to the general rule against third-party communications is the “location information” exception. The FDCPA allows debt collectors to place collection calls to friends and family to learn your location information. Location information is your address and phone number. But this call is strictly regulated:

*the collector must identify himself and tell your friend that he is confirming your location information;

*the collector can’t identify his employer unless your friend asks;

*the collector can’t tell your friend that you owe a debt or discuss the details of the debt;

*in most cases, the collector can’t ask your friend to have you call the collector back;

*in most cases, the collector only gets to make this “location information” call one time

It also follows that if the collector already knows your address and phone number, then it can’t call a third-party for your location information.

If collection calls to friends and family are illegal, why do collectors do it?

Although it violates the FDCPA, many debt collectors use this tactic because it’s profitable. If you’re like most people, you’re understandably embarrassed by not being able to make ends meet. It’s stressful enough to suffer this embarrassment privately. But when a debt collector tells your friend or family member that you aren’t paying your bills, your private embarrassment quickly turns into semi-public humiliation. Debt collectors know this and use the third-party calls to put pressure on you to make a payment. Debt collectors also know that most consumers don’t know about their rights under the FDCPA, so there is little chance that the consumer will do anything about the illegal third party calls. Rather than paying the debt collector to make the third party calls stop, it may be best to discuss your situation with a consumer lawyer. Paying the shady debt collector will only encourage him to keep breaking the law. But a consumer lawyer can help you hold the debt collector accountable by bringing a FDCPA lawsuit on your behalf. After being sued for violating the FDCPA, most debt collectors will think twice about violating it again.

If you’re dealing with debt collectors, make sure to download and use our free debt collection call log so that you can document all of the debt collectors’ communications. And if the debt collector does anything that you think was unfair; untrue; or harassing, oppressive, or abusive, please contact us to discuss the situation further. We offer a free case review for all FDCPA cases and if we agree to handle your case, you won’t have to pay us any money up front. Our fees come from the money we recover for you if you win your case or accept a negotiated settlement.

(photo: http://www.flickr.com/photos/12567713@N00/463392640/)