Under the federal Fair Debt Collection Practices Act (FDCPA), those seeking to collect debts from you must respect your rights and must follow certain rules. These requirements were imposed based on the US Congress’s recognition that the debt collection industry was rife with abuse.
What Does the FDCPA Cover?
The FDCPA does not cover the collection of all kinds of debt. It covers collection efforts relating only to debt incurred by a consumer primarily for personal, family, or household use. It does not apply to corporate, business, or agricultural debit.
Under the FDCPA, a debt collector is any person who regularly collects, or attempts to collect, consumer debts on behalf of another person or institution or uses a name other than its own when attempting to collect its own consumer debts. The covered debt collectors include any institution that regularly collects debts for an unrelated entity. A covered debt collector is not a person or entity when it is engaged in collecting:
- Another entity’s debts in occasionally
- Its own debts under its own name
- Debts that were not in default when they were acquired
- Debts the person or entity originated and then sold but continues to service (e.g., mortgages)
- Debts acquired as security for a commercial credit transaction
- Debts incidental to a fiduciary relationship or escrow account
- Debts as part of its regular business for other affiliated entities
Also excluded from the definition of “covered collector” are:
- Officers of employees of an entity who collect debts owed to the entity in its name
- Legal-process servers
What Can a Debt Collector Do?
Since lenders would not make loans that they had no power to collect, it is clearly sound public policy to permit lenders to engage in reasonable collection efforts. However, the FDCPA defines how a debt collector may go about doing that.
Debt collectors may communicate with a consumer or third party concerning the collection of a debt. For these purposes, the FDCPA defines a consumer as including the debtor’s spouse, parent (of a minor debtor), guardian, executor, or an administrator.
By limiting the time (not before 8:00 a.m. or after 9:00 p.m. in the consumer’s local time) and place where a consumer may receive communication about debt, the FDCPA prevents abusive attempts to collect a debt. For example, a debt collector may not contact a consumer at the consumer’s job if the collector has reason to believe the employer prohibits such contacts. Moreover, if the collector knows that the consumer has hired a lawyer and can easily discover the attorney’s contact information, the collector must contact only the attorney so long as the attorney is responsive or until the attorney authorizes direct contact with the client.
If a consumer, in writing, refuses to pay a debt or requests that collection efforts end, the collector must end all further communication efforts. The collector may, however, notify the consumer that:
- The collection effort will stop
- Certain specified remedies may be pursued
- Mailed notices from the consumer are official when received by the collector
A debt collector may only communicate with the consumer and certain named parties when attempting to collect a debt. These parties include the consumer (as defined above) and
- The consumer’s attorney
- The creditor and its attorney
- A consumer reporting agency (if permitted by local law)
- The collector’s attorney
The consumer or a court with authority over the case may authorize the collector to communicate with other third parties. The collector can also contact the third party when requesting contact information about a consumer that cannot be found otherwise. No third party can be contacted more than once. All contact with third parties must be in a form that does not indicate the nature of the collector’s business.
What Can’t a Debt Collector Do?
The FDCPA prohibits collectors from engaging in certain harassing or abusive practices. Among these practices and abuses are:
- Use or threats of violence or other criminal means to injure any person or the person’s property or reputation
- Use of obscene, profane, or abusive language
- Publish a list of non-paying consumers other than to a consumer reporting agency
- Advertise a debt for sale to coerce the consumer to pay
- Abusive or harassing telephone calls
- Make telephone calls without identifying the collector
A collector is also prohibited from making false or misleading representations, including:
- Implying any bonding or approval by any governmental unit
- Misrepresenting compensation the collector will receive for its services
- Falsely implying that the collector is an attorney or that papers provided to the consumer do not require a response
- Threatening to take illegal actions
- Threatening criminal consequences for non-payment
- Threatening to communicate false credit information about the consumer
- Failing to disclose in the initial written and oral communication with the consumer the collector’s status and purpose
Also prohibited are unfair practices. These practices include:
- Collecting debt, fees, or interest not included in the original contract
- Accepting a check post dated by more than five days without ten days written notice of intent to deposit
- Solicit a post dated check to use as a threat
- Use a postcard to contact a consumer, thereby revealing the purpose of the communication
What if the Collector Violates These Prohibitions?
If a collector violates these provisions, the collector can be liable for civil damages sustained by the consumer as well as punitive damages up to $1000 along with costs and fees.
What Is the Impact of Local Law on the FDCPA?
Unlike most federal laws, the FDCPA preempts state law only when the state law is less restrictive than the FDCPA. State laws more restrictive than the FDCPA are not considered inconsistent with the statute and may be used against collectors.
Florida has enacted several laws that supplement the FDCPA and strengthen the protection offered by it.
How Can a Florida Debt Collection Harassment Attorney Help?
As with any complex federal statute that interacts with but does not preempt state law, Florida’s law concerning debt collection is complex and can be confusing. Even doing something as simple as effectively telling the collector to stop communicating with you has to be done in precise compliance with legal requirements. If you believe you are being harassed or abused by a collector, you should contact a debt collection attorney immediately to protect your rights – and your peace of mind. Having outstanding debt does not take away your protection under the law. Contact us online or call 800-800-6500 for an initial consultation today.