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Heather A. Harwell, PLLC
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Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA) is a federal law protecting consumers from abusive, deceptive, and unfair debt collection practices. Florida has a similar law known as The Florida Consumer Collection Practices Act (FCCPA). Whereas a lawsuit may generally not be brought against an original credit pursuant to the FDCPA, both orignal creditors and debt buyers may be sued for violation of the FCCPA. If a debt collector violates provisions of the FDCPA, it may be liable to the effected consumer for up to $1,000, plus actual damages caused by the violation, plus reasonable attorneys' fees and costs. It is important to note that if the consumer's complaint is determined to be frivolous or otherwise filed in bad faith, the consumer could be liable to the debt collector for its attorneys' fees and costs. Even if a debt collector is found to have violated the FDCPA, it may not be held liable if it is able to show by a preponderance of evidence that the violation was not intentional and resulted from a "bona fide error". (15 U.S.C. sec. 1692k(c)). The following factors are considered in determining whether or not any particular violation rises to the level of liability:
Frequency. How often the violation occured or was repeated.
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Persistence. Whether or not the violation continued, especially in the case where the debt collector was requested to cease the particular action.
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Nature of Noncompliance. The more egregious the nature of the violation by the debt collector, the more likely the debt collector will be held liable. For example, if the consumer initiates contact with the debt collector, it will be unlikely that the debt collector will be held liable for frequent calls to the
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Intentional. If a consumer is able to establish that the violation occured despite being requested to cease or despite the debt buyer's claim that it had practices in place to prevent such a violation, the more likely the debt buyer will be held liable to the consumer for the violation.
The FDCPA specifies what is considered to be a debt collector violation as follows; some of the violations may be waived with express, written prior consent from you:
Inconvenient Contact Without Prior Consumer Consent. A debt collector may not contact you at any unusual place or time. A debt collector also may not contact you before 8 a.m. or after 9 p.m.
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Calling You at Your Place of Employment. If you advise the debt collector that you are not allowed calls at work, the debt collector may not call you at work.
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Contacting You Directly When You are Represented by an Attorney. If a debt collector knows or should know that you are represented by an attorney, the debt collector may not contact you directly. The debt collector may contact you directly if your attorney fails to respond to a communication within a reasonable time or if your attorney consents to the direct communication.
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Contacting Third Parties. Some debt collectors will use your social media to contact friends and relatives in order to track you down. This is expressly prohibited. A debt collector may not communicate with anyone regarding your debt other than your attorney, a consumer reporting agency the original creditor, the debt collector's attorney or the original creditor's attorney. If you receive a bill that clearly shows on the outside of the envelope that you owe a debt, the debt collector has impermissably disclosed information to third parties.
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Contacting You After Requested to Stop. If you notify a debt collector that you refuse to pay the debt or that you wish the debt collector to cease further communication, a debt collector may then only contact you to advise that it will no longer attempt to collect the debt or that it intends to seek a specified remedy such as filing a lawsuit.
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Threatening You. A debt collector may not threaten to use violence against you, threaten to harm your reputation or property. This includes threatening to put you in jail for owing the debt. A debt collector may also not threaten to take any action that cannot legally be taken against you.
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Use of Obscene or Profane Language. A debt collector may not swear at you or use lewd language.
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Harassing You With Phone Calls. A debt collector may not repeatedly call you with the intent to annoy, abuse or harass you. A daily call from a debt collector may not be considered harassing although multiple calls over a period of days could be considered harassing.
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Concealing Identity or Using a False Identity. Debt collectors have been known to use false caller ID's or otherwise not disclose their identities in their attempts to collects. Such deceptive activity is considered a violation of the FDCPA. A debt collector may not use any name other than the true name of the debt collector's business, company or organization. Similarly, if a debt collector gives the impression directly or indirectly that he or she is affiliated with law enforcement, a government entity, or a law office when he or she is not, the debt collector has violated the FDCPA. A debt collector is further prohibited from sending you a letter or notice that appears to be authorized, issued or approved by a court or government agency. Ultimately, any false representation or deceptive means used in an attempt to collect a debt or obtain information regarding you is prohibited.
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Falsely Representing the Character, Amount or Legal Status of a Debt. This violation often occurs when the statute of limitations has run on a debt but the debt collector attempts to give the impression that it still has the ability to file a lawsuit. This also occurs when a debt collector attempts to collect more than is actually owed.
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Using Unconscionable Means to Attempt to Collect a Debt. Collecting any more than the contracted debt is considered and unfair practice as is depositing or threatening to deposit any postdated check prior to the date on the check. The FDCPA also prohibits the debt collector from causing charges to you for collet telephone calls or telegram fees but failing to disclose the true purpose of the communication. Debt collectors may not attempt to collect by sending you a postcard.
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Falsely Accusing You of a Crime. A debt collector may not falsely accuse you of committing a crime.
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Failing to Validate a Debt. Within 5 days after a debt collector initially communicates with you regarding a debt, the debt collector must send you written notice of the debt amount, the creditor's name, notice that your failure to dispute the debt within 30 days will result in the assumption that the debt is valid, and a statement that you may request the name and address of the original creditor in writing if different from the current creditor. If you notify the debt collector in writing within 30 days that the debt is disputed or that you request the name and address of the original creditor, the debt collector shall not take any action to collect the debt until the debt collector has sent you verification of the debt or a copy of a relevant judgment.
If you think that a debt collector has violated the FDCPA, you need to thoroughly document all the communicates. If the violation occured during a telephone call, you will need to write down the date and time of day of the call, the name of the debt collector, the debt collector's telephone number and exactly what was said. If the violation did not occur during a telephone, make sure to save all the documents related to the debt collection. Once you have gathered your proof, contact a consumer law attorney.
The information provided in this website and blog page is intended for informational purposes and should not be construed as legal advice. You should never rely solely on websites for legal information or advice and contact a licensed attorney with any questions you may have.