WHAT EVERY CONSUMER SHOULD KNOW
ABOUT THE COLLECTION OF DEBTS
It is first important to state that we all have a legal and a
moral obligation to pay our just and owing debts whenever possible. However,
bad things happen to good people every day and it is not always
possible to stay current with all of one’s bills. People
lose their jobs, get sick and don’t have adequate medical
insurance, or they get divorced. At this point choices must
be made. The health and welfare of your family should come
first. When the choice is whether to pay the mortgage or
the visa bill, common sense dictates that you pay the mortgage
first. Likewise, when the choice is buy groceries to feed
the children or pay the mortgage, common sense also dictates that
you buy the groceries. When times are tough, food and shelter
must come first. Unfortunately, when one must make difficult
decisions like these, it is only a matter of time before they will
be contacted by a debt collector. The second important thing
to note is that not all debt collectors are bad. In fact,
the majority of them are careful to follow the law. The remainder
of this article will focus on your rights when you run into a debt
collector who chooses not follow the law and attempts to collect
the debt using abusive and/or harassing techniques.
THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT
The Federal
Fair Debt Collection Practices Act requires that debt collectors
treat you fairly and prohibits certain methods of collecting debts.
WHO DOES THE FEDERAL ACT PROTECT?
The Federal Act is primarily
intended to protect consumers. The Act defines a consumer as any
natural person obligated or allegedly obligated to pay any debt.
Consumers are the ones who are most often harassed or abused by
debt collectors. However, the Federal Act further states that debt
collectors are not to harass, oppress, or abuse any person in connection
with the collection of a debt. This means that any person who is
harassed by the collector has the right to file a suit under the
Federal Act.
WHO MUST COMPLY WITH THE FEDERAL ACT?
The Federal Act governs the
collection of debts by debt collectors. Debt collector is defined
by the statute as any person or business who’s
principal purpose is the collection of debts or who regularly collects
or attempts to collect debts owed or due to another. This
means that the actual creditor is not subject to the Federal Act.
Generally the Federal Act kicks in when the original creditor assigns
the debt to an outside collection agency. That doesn't
mean that original creditors are free to harass and abuse people.
The state of Florida has a consumer collection statute similar
to the Federal statute which protects people from abusive behavior
from both original creditors and debt collectors.
HOW AND WHEN MAY A DEBT COLLECTOR CONTACT YOU?
A debt collector
may contact you in person, by mail, telephone, or fax. The collector
is not allowed to contact you at any unusual time or place or a
time or place the collector should have reasonably known to be
inconvenient to you. The Act states that the collector shall assume
that the convenient time for a consumer to be contacted is between
8:00 a.m. and 9:00 p.m.
MAY A DEBT COLLECTOR CONTACT ANYONE ELSE ABOUT YOUR DEBT?
If you
hire an attorney to represent you and the collector knows that
you have hired the attorney, the collector can not contact you
any more about the debt but instead must contact your attorney.
Other than this, debt collectors are limited to contacting third
parties only for the purpose of obtaining or verifying location
information. This means the collector may call your friend or relative
to find out where you live, what your telephone number is or where
you are employed. The collector may only contact your friend or
relative one time for this purpose and they are not allowed to
tell them that you owe money to another. However, the collector
is not allowed to call your friend, relative or neighbor and request
that they give you a telephone message. This is a technique
many of my clients complain about.
WHAT IF YOU BELIEVE THAT YOU DON’T OWE THE MONEY?
Within
5 days after you are first contacted by a debt collector, the collector
must send you a written notice telling you the following:
- the amount of the debt,
- the name of the creditor to whom the debt is owed,
- a statement that unless you dispute the validity of the debt,
or any portion thereof within 30 days of your receipt of the
notice the debt collector will assume the debt to be valid,
- a statement that if you notify the debt collector in writing
within 30 days of receiving the notice that you dispute the debt
or any portion thereof, the debt collector will obtain verification
of the debt or a copy of a judgment against you and a copy of
such verification or judgment will be mailed to you by the debt
collector,
- a statement that if you notify the debt collector in writing
within 30 days of receiving the notice, the debt collector will
provide you with the name and address of the original creditor,
if different from the current creditor,
- and, a statement that the communication is from a debt collector
attempting to collect a debt and that any information obtained
will be used for that purpose.
If you are contacted by a debt collector and you do not believe
you owe the money, you should send them a letter advising the collector
that you dispute the debt within 30 days of receiving the notice
described above. When you timely dispute the validity of
the debt, the debt collector cannot continue their collection efforts
against you until they provide verification of the debt or a copy
of the judgment. Therefore, it is very important that you
send a dispute letter to the debt collector within 30 days of receiving
the notice. If and when the collector provides you with proof
that you owe the debt by, for example, sending you a copy of a
bill showing the amount owed, they can resume collection activities.
WHAT TYPES OF DEBT COLLECTION PRACTICES ARE PROHIBITED?
- Harassment. Debt collectors are not allowed to harass,
oppress, or abuse you or any third parties they contact. Some
examples of harassment would be using threats of violence or
harm; publishing a list of consumers who refuse to pay their
debts; using obscene or profane language; or repeatedly using
the telephone to annoy someone.
- False Statements. Debt collectors are not allowed to
make false or misleading statements when collecting debts. Some
examples of false statements would be implying that failure to
pay the debt is a crime; misrepresenting the amount of your debt;
indicating that papers being sent to you are legal forms when
they actually are not; saying you will be arrested if you do
not pay; stating that they will seize, garnish, attach or sell
your property or wages unless the collection agency or creditor
intends to do so and it is legal to do so; the collector is also
not allowed to provide false credit information about you to
anyone including a credit bureau.
- Unfair Practices. Some examples of unfair practices would
be depositing a post-dated check prematurely; use deception to
make you accept collect calls or telegrams; take or threaten
to take your property unless this can be done legally; or contact
you by postcard.
WHAT CAN YOU DO IF YOU BELIEVE A DEBT COLLECTOR HAS VIOLATED THE
LAW?
If you believe a debt collector has violated the law in their
attempt to collect a debt from you, you have the right to sue in
state or federal court within one (1) year from the date the law
was violated. If you win, you may recover actual damages you suffered,
statutory damages up to $1,000 plus court costs and attorney fees.
If you believe you are the victim of abuse by a debt collector,
call us as soon as possible for a free consultation. |
