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CONSUMER RIGHTS UNDER FDCPA
Posted by: Micah Adkins
March 18, 2009

The Fair Debt Collection Practices Act (FDCPA or the Act) was enacted to protect consumers from unscrupulous debt collectors. The following is a partial listing of consumer (debtor) protections afforded by the Act:

1. Consumer has the right to terminate collection contacts. 15 U.S.C. Section 1692c(c). If a consumer notifies a debt collector in writing that the consumer refuses to pay the debt or the consumer requests the debt collector to cease future communications with the consumer, the debt collector may not communicate further with the consumer except to: advise the consumer that the debt collection efforts are being terminated; notify the consumer that the debt collector or creditor may invoke certain remedies (i.e., settlement options); or notify the consumer that the debt collector intends to invoke a specific remedy. A written notice mailed to the debt collector is deemed complete upon receipt. It is a good idea to mail the letter certified mail, return receipt requested to document receipt by the debt collector. Most consumers are unaware of this right because debt collectors are not required by federal law to disclose the right. If you notify the debt collector of your intent to exercise the right, you should keep a photocopy of the letter for future reference.

2. Debt collector must verify the amount and existence of debt upon request by the consumer. 15 U.S.C. Section 1692g. The first element of the debt validation process is the amount of the alleged debt. Debt collectors often state an amount, PLUS additional fees or charges (i.e., attorneys' fees or other charges) without specifying the dollar amount of the additional fees. The fees may be negotiable and the end result is some consumers will pay less and some consumers will pay more based on their bargaining power, or lack thereof. Consumers should request validation of the amount in writing from the debt collector and keep a copy of the request for future reference. When a consumer notifies a debt collector in writing that he disputes any part of the alleged debt the debt collector is required to stop communications with the consumer, until the debt collector verifies the debt from the original creditor and a copy of the verification or the name and address of the original creditor is mailed to the consumer. The Act requires the consumer's validation request to the debt collector to be in writing. The debt collector may not resume collection activities or or file a lawsuit until it has mailed verification of the debt to the consumer. (See Law Offices of David Stern, P.A. v. Martinez, 311 F.3d 1272 (11th Cir. 2002).

3. Debt collector may not contact consumer if debt collector knows the consumer is represented by an attorney. 15 U.S.C. Section 1692c(a)2. Without prior consent of the consumer or consumer's attorney directly to the debt collector or by court order, a debt collector may not communicate with a consumer if the debt collector knows the consumer is represented by an attorney. It should be noted, the consumer right is only available when the consumer is represented by an attorney; non-lawyers (i.e., someone acting under a power of attorney on behalf of the consumer) do qualify under the Act.

4. Debt collector generally may not have communication with consumer's employer. 15 U.S.C. Section 1692c(a)(3). Without prior consent of the consumer, a debt collector generally may not communicate with the consumer's employer if the debt collector knows or has reason to know that the consumer's employer does not allow the consumer from receiving such calls. The purpose of the protection for consumers under the act is to prevent interference with their jobs.

5. Debt collector may not have communication with consumer's friends and/or neighbors. (See O'Connor v. Check Rite, 973 F.Supp.. 1010 (D. Colo. 1997) and West v. Nationwide Credit, Inc., 988 F.Supp. 642 (W.D. NC).  A debt collector may not may not telephone, write or visit consumer's friends and/or neighbors, unless debt collector is trying to locate the consumer. In such a case, efforts to locate consumers by debt collectors are strictly regulated. For example, when contacting third parties the debt collector shall not state that the consumer owes money and cannot provide the collection agencies name, unless requested. This right may be waived by the consumer or expressly permitted by court order.

If you, your employer, friend or neighbor has been contacted by a debt collector about an account you allegedly owe, you may be entitled to money damages. Contact attorney Micah Adkins for a free and confidential case evaluation.

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DOES THE LAW PROTECT CONSUMERS FROM DEBT COLLECTORS?
Posted by: Micah Adkins
March 09, 2009

Yes. The Fair Debt Collections Act of 1978 (referred to as FDCPA or the Act) was made law to promote ethical collection practices of debt collectors. 15 U.S.C. Sections 1692-1692o (See also Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir. 1985). The Act creates standards of conduct for debt collectors and provides rights for consumer debtors. The Act only applies to consumer debts, not business transactions. The term natural person is used by the Act to describe consumer debtors The term debt collector is defined as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts.... 15 U.S.C. Section 1692a(6). A debt collector's law firm is included in this definition. See Kimber v. federal Financial Corp., 668 F.Supp. 1480 (M.D. Ala. 1987).

The Act protects consumers from abusive phone calls, false or deceptive representations, invasion of privacy and unfair or unconscionable collection practices. For example, late night phone calls or false threats of legal action would be violative of the Act. Consumers have a right under the Act to terminate collection contacts and verify the underlying debt. Consumers may be entitled to actual and/or statutory money damages when a debt collector violates the Act.

If you believe your rights may have been violated by a debt collector, contact attorney Micah Adkins for a free case evaluation.

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What is a Collection Agency?
Posted by: Micah Adkins
September 01, 2008

Collection Agencies often get involved with outstanding debts for health services or when a creditor believes a consumer is judgment proof.  A collection agency is hired by the creditor on a contingency fee basis or for a flat fee.  The collection agency may be a small office or a national company, while others may only exist in name or on paper, but are really a subisidiary of creditors-retailers, banks or finance companies.  When a collection agency attempts to collect a debt, it can generally be referred to as a "debt collector".

The federal Fair Debt Collection Practices Act  of 1978 ("FDCPA" or "the Act") generally applies to collection agencies and lawyers (aka - "debt collectors", but may also cover creditors in certain circumstances).  The FDCPA regulates collection practices and provides general standards for ethical conduct by debt collectors.  The Act also provides consumers a private cause of action when debt collectors violate the FDCPA.  Consumers may be entitled to actual, statutory, and/or puntitive damages for a violation of the Act.

If you have been sued by a debt collector, or you are receiving harassing phone calls or letters, you may be entitled to actual, statutory, and/or punitive damages under federal and state law.  Contact Micah Adkins at our firm for a free consultation.

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