How does it protect the Consumer?
Congress enacted the Fair Debt Collections Practices Act (FDCPA), 15 USC § 1692 et seq., in 1978 in order to combat unethical and offensive consumer debt collections practices. While the Act does not apply to the collection activities of original creditors, it does apply to collections agencies. Moreover, it bars collectors from employing a number of sadly familiar and offensive debt collecting practices.
Under the Act, debt collectors may not communicate with a consumer in connection with the collection of a debt under any of the following circumstances:
- Before eight a.m. and after nine p.m. without the consumer's permission;
- At the consumer's workplace where the debt collector has reason to know that the employer prohibits the consumer from receiving communications
- Where the debt collector knows the consumer is represented by counsel with respect to the debt at hand and has knowledge of the attorney's name and number or address;
The Act bans debt collectors from communicating with third persons under certain circumstances as well. While a debt collector may contact a debtor, the debtor's attorney and a consumer credit reporting agency, a debt collector may not contact a debtor's friends and neighbors or his other creditors. The only meaningful exception to this rule is that a collector may contact anyone in order to obtain information regarding the debtor's location.
Under the Act debt collectors may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Specifically, a debt collector is prohibited from engaging in all of the following practices:
- Falsely representing the amount of legal status of any debt:
- Implying that nonpayment of any debt will result in the arrest or imprisonment of any person;
- Threatening to take any action that cannot legally be taken or that is not intended to be taken.
- Falsely representing or implying that accounts have been turned over to innocent purchasers for value.
- Use any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
- False representing or implying that a debt collector operates or is employed by a consumer reporting agency.
Finally, a debt collector may not harass or abuse any person in connection with the collection of a debt. Among other things, the Act bans the following in connection with the collection of a debt:
- The use of obscene or profane language;
- The threat of the violence;
- Repeatedly or continuously engaging a person in phone conversation with the intent to annoy, harass or abuse;
- Placing telephone calls to the debtor without meaningful disclosure of the caller's identity.
The Fair Debt Collections Act does have teeth.
- Any debt collector who violates the provisions of the Act is liable for unlimited actual damages.
- Debtors may recover for emotional distress, loss of sleep, headaches and loss of privacy as well.
- Any collector who violates the Act may be held liable for additional statutory damages upwards of $1000.00.
- Finally, a prevailing injured debtor may recover reasonable attorney fees regardless of whether any damages were awarded.