FDCPA Violations

California and federal fair debt collection laws prohibit many types of conduct. A debt collector cannot harass or abuse a consumer by, among other things, cursing at the consumer or threatening harm to someone. Excessive telephone calls can amount to harassment or abuse under the fair debt collection laws. A debt collector cannot make false or deceptive statements to a consumer. Thus, a debt collector violates the fair debt collection laws when the collector tells the consumer that he or she will be arrested or sued, when neither the collector nor the original creditor intended to have the consumer arrested (and they rarely, if ever, do), or to sue the consumer. A debt collector cannot use unfair means to collect a debt by, for example,  attempting to collect any amount (like interest or attorneys’ fees) when such amount is not expressly authorized by the agreement creating the debt or permitted by law. These are just some of the many types of conduct prohibited by the fair debt collection law.

The fair debt collection laws requires a debt collector to provide specific disclosures to a consumer. Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector must send the consumer a written notice containing detailed information about the debt and the consumer’s “validation” rights. In addition, the collector must validate the debt upon the consumer’s request, and generally, stop all collection efforts pending such validation.

The fair debt collection laws strictly regulate communications by debt collectors. The fair debt collection laws provide rules as to the permissible communications a debt collector can have with the consumer and others about a debt. A debt collector can call your family, friends or employer only under very limited circumstances. A consumer also has the right to stop collection contacts, which the collector must honor.

Specific Prohibitions

Harassment or Abuse +

The fair debt collection laws prohibits a debt collector from harassing or abusing any person in attempting to collect a debt. This includes the following conduct:

  • The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
  • The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
  • The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency (such as Experian, Trans Union or Equifax).
  • The advertisement for sale of any debt to coerce payment of the debt.
  • Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
  • The placement of telephone calls without meaningful disclosure of the caller’s identity.

False, Deceptive or Misleading Conduct +

The fair debt collection laws prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. This includes the following conduct:

  • The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
  • The false representation of the character, amount, or legal status of any debt, or any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
  • The false representation or implication that any individual is an attorney or that any communication is from an attorney.
  • The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
  • The threat to take any action that cannot legally be taken or that is not intended to be taken.
  • The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to (A) lose any claim or defense to payment of the debt; or (B) become subject to any practice prohibited by the fair debt collection laws.
  • The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
  • Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
  • The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
  • The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
  • The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
  • The false representation or implication that accounts have been turned over to innocent purchasers for value.
  • The false representation or implication that documents are legal process.
  • The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
  • The false representation or implication that documents are not legal process forms or do not require action by the consumer.
  • The false representation or implication that a debt collector operates or is employed by a consumer reporting agency (such as Experian, Trans Union or Equifax).

Unfair Conduct +

The fair debt collection laws prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect any debt. This includes the following conduct:

  • The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
  • The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
  • The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
  • Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
  • Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
  • Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement.
  • Communicating with a consumer regarding a debt by post card.
  • Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

Debt Collector Communications +

Debt collectors must identify themselves and the purpose of the communication. In the initial communication with a consumer, a debt collector must tell the consumer that it is a debt collector attempting to collect a debt, and that any information obtained will be used for purposes of collecting the debt. In every communication, the debt collector must inform the consumer that it is a debt collector attempting to collect a debt.

Debt collectors generally cannot disclose the debt to third parties. In general, a debt collector can disclose the existence of a debt to a consumer and the consumer’s spouse. A debt collector is also permitted to discuss a consumer’s account with the debt collector’s client, the consumer’s attorney, the attorney for the creditor or the debt collector, and a credit reporting agency. If a debt collector discloses the existence of a debt to anyone else, the collector will be deemed to have made a “third-party disclosure” in violation of the FDCPA.

Debt collectors can communicate with family and friends only to obtain location information. The fair debt collection laws permit a debt collector to communicate with anyone once for the very limited purpose of obtaining the consumer’s contact information. However, a debt collector is not allowed to disclose the existence of a debt in those communications.

Debt collectors can contact your employer only under very limited circumstances. A collector may contact a consumer’s employer only: (a) to verify employment; (b) to locate the consumer; (c) to garnish wages (assuming there is a right to do so); or (d) to discover the existence of insurance (but only if medical debt is at issue). The collector generally must communicate with the consumer’s employer in writing. The only exceptions to that rule are: (a) one phone call may be made to verify employment; (b) a health care provider or its agent may telephone the employer more than once to discover the existence of medical insurance; and (c) a collector may call an employer more than once if the employer does not respond to a written communication within 15 days. The collector must not give the consumer’s employer any information about the debt.

You can stop a debt collector’s contacts with your employer. A debt collector cannot contact a consumer’s employer if the consumer notifies the collector that his or her employer prohibits its employees from receiving communications from creditors at work, or the calls are inconvenient to the consumer. It is important that you inform the debt collector (if possible, in writing) that your employer’s rules or preferences are that its employees not receive collection calls at work, and/or that the calls are inconvenient.