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Consumers' Rights against Debt Collection Harassment

You might agree with me that life has become pretty complex these days. While many of us contend with the multiple demands of job and family, medical experts report that our stressful lives are making us ill. When financial problems are added to the mix, things get even worse. Add a half-dozen bill collectors hounding you and things can seem overwhelming.

If you are one of the millions of Americans struggling to work your way through a current debt situation, you should be aware of some basic protections that may lighten the load just a little. In March of 1978, Congress enacted the "Fair Debt Collection Practices Act." In approving this legislation, Congress specifically found Aabundant evidence of use of abusive, deceptive, and unfair collection practices by many debt collectors.@ The goal of this legislation was to put a stop to the unfair tactics utilized by many unscrupulous collectors. Over the past twenty years, the courts have enforced the Act and broadened its powers. (Many states, including Florida, have adopted similar legislation patterned after the Federal Act.)

To be afforded protection under the "Fair Debt Collection Practices Act," you must first meet certain requirements. (1) You must be a "consumer," and (2) the debt must be "consumer debt." A consumer is "any natural person obligated or allegedly obligated to pay any debt." Consumer debt is defined as "any obligation. . . of a consumer to pay money arising out of a transaction in which money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment."

A debt collector is defined as "any person . . . the principal interest of which is to collect any debts, or who regularly collects or attempts to collect, directly or indirectly, debt owed or due, or asserted to be owed or due to another." While there are some exemptions in the statute, this broad definition covers the majority of collectors, including collection agencies and attorneys.

If you are contacted by a debt collector concerning a consumer debt, there are some specific statutory requirements that the collector must follow. For example, within five days of the initial communication with the consumer, a debt collector must advise the debtor in writing of: (1) The amount of debt; and (2) the name of the creditor to whom the debt is owed.

You have 30 days from the receipt of the notice to dispute the validity of the debt, or any portion thereof, in writing, or the debt collector may assume the validity of the debt. If a consumer properly disputes the debt within the 30-day period, the collector must obtain verification of the debt and mail it to the consumer. Additionally, within the 30-day period, the debt collector must provide the consumer with the name and address of the original creditor, if different from the current creditor. Failure to send this notice in a timely manner can result in a violation of the Act and subject the collector to sanctions.

Certain types of abusive conduct are prohibited and regulated by the Act:

  1. Communicating with the consumer in connection with collection of any debt at any unusual time or place. In the absence of knowledge of circumstances to the contrary, a creditor shall assume that a convenient time for communicating with a consumer is after 8:00 a.m. and before 9:00 p.m. You should not be receiving phone calls at midnight from your credit card company, or "King-Kong Collection Agency."
  2. Contacting the consumer when the consumer is represented by an attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector, or unless the attorney first consents to direct communication with the consumer. Basically, if you have turned the problem over to your attorney, you should not be receiving phone calls from the collection agency.
  3. Contacting a debtor at work after the collector has been advised not to phone the debtor at his or her place of employment. Once a consumer notifies a collector not to call them at work, further calls are prohibited.
  4. Advising third parties (friends, relatives, employers) of the consumer's debt. A collection agency should not be defaming a consumer to third parties.
  5. Harassing, oppressive, or abusive behavior. This is a broad category, and subject to broad interpretation.
  6. Threatening criminal acts or violence. If a collector threatens to perform "impromptu dental surgery," rest assured that he is in violation of the Act.
  7. Using profanity, obscenities, and/or abusive language.
  8. Placing continuous phone calls intended to harass, annoy or abuse the consumer. At least one court has held that a collector immediately calling the debtor after debtor hung up the phone, constituted harassment.
  9. Failure to identify oneself as a debt collector. Collectors may use a Adesk name@ to protect themselves individually, but they must disclose the name of their employer and the nature of the business.
  10. Making deceptive, false or misleading misrepresentations. For example, mass-produced collection letters not reviewed by an attorney prior to mailing are considered false and deceptive.
  11. Implying or stating that the collector is affiliated or connected with the government; falsely representing the character, amount or legal status of the debt. For instance, a collector cannot falsely represent himself as an IRS agent to frighten the consumer into paying the debt. (Please note that if it is IRS debt, it is probably not a consumer debt and not protected by the Act.)
  12. Falsely implying the communication comes from an attorney or that a person is an attorney.
  13. Threatening to send out false credit information.
  14. Using language or symbols on envelopes that indicate that it is from a collection agency. (This includes sending postcards.)

If your life has been made more difficult by bill collectors utilizing unfair practices, keep in mind that you have rights that protect you from abusive or harassing collection behavior. Not only should you be able to stop some of the behaviors outlined above, but you may also be able to collect money damages from the collector for willful and repeated violations. The federal act allows for a recovery of $1,000 or actual damages and the state act allows for a $500 recovery or actual damages. Plaintiffs of successful lawsuits are often entitled to recover costs and reasonable attorneys= fees. In some circumstances, punitive damages are also recoverable.

Often, simply advising the collector that you are aware of the act and your rights under it will stop the harassment. If it doesn=t, you may want to save the messages and letters and keep a log in case you need to utilize the federal and state protections.

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