If you believe you are a victim of unfair or illegal debt collection tactics, submit your information to a FREE* Fair Debt Lawyer by:
The debt collector may just be liable to you for statutory damages of up to $1,000, plus any actual damages suffered, plus attorney fees!
The FDCPA defines
and prohibits 8 unfair debt collection practices according to section 808.
Unfair debt collection practices prohibited by the FDCPA
include the following eight illegal and unfair practices! Debt collectors who
violate these rules can be personally sued in civil court!
- Unfair debt collection activities -
808.
- Collecting only the authorized amount -
808(1)
- Postdated checks - 808(2)
- Soliciting postdated checks - 808(3)
- Depositing postdated check prior to date -
808(4)
- Telephone charges - 808(5)
- Prohibits threatening nonjudicial action -
808(6)
- Prohibits communicating by post card -
808(7)
- Prohibits certain communication on envelope -
808(8)
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1. Section 808 prohibits a debt collector from
using "unfair or unconscionable means" in his debt collection activity. It
provides eight examples of unfair practices.
1. Scope. Prohibited actions are not
limited to the eight subsections listed as examples of activities that
violate this provision.
2. Elements of unfairness. A debt collector's
act in collecting a debt may be "unfair" if it causes injury to the consumer
that is
(1) substantial,
(2) not outweighed by countervailing benefits to consumers or
competition, and
(3) not reasonably avoidable by the
consumer.
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2. Section 808(1) prohibits collecting any
amount unless the amount is expressly authorized by the agreement creating the
debt or is permitted by law.
1. Kinds of amounts covered. For purposes of
this section, "amount" includes not only the debt, but also any incidental
charges, such as collection [53 Fed. Reg. 50108] charges, interest,
service charges, late fees, and bad check handling charges.
2. Legality of charges. A debt collector may
attempt to collect a fee or charge in addition to the debt if either:
(a) the charge is expressly provided for in the contract
creating the debt and the charge is not prohibited by state law, or
(b) the contract is silent but the charge is otherwise
expressly permitted by state law.
Conversely, a debt collector may not collect
an additional amount if either:
(a) state law expressly prohibits collection of the amount or
(b) the contract does not provide for collection of the
amount and state law is silent.
3. Legality of fee under state law. If state
law permits collection of reasonable fees, the reasonableness (and
consequential legality) of these fees is determined by state law.
4. Agreement not in writing. A debt collector
may establish an "agreement" without a written contract. For example, he may
collect a service charge on a dishonored check based on a posted sign on the
merchant's premises allowing such a charge, if he can demonstrate that
the consumer knew of the charge.
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3. Section 808(2) . prohibits accepting a
check postdated by more than five days unless timely written notice is given to
the consumer prior to deposit
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4. Section 808(3) prohibits soliciting any
postdated check for purposes of threatening or instituting criminal
prosecution.
Telling a debtor, "give me a post-dated check I will have you
arrested" is illegal! Any similar language is also prohibited.
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5. Section 808(4) prohibits depositing a
postdated check prior to its date.
1. Postdated checks. These provisions do not
totally prohibit debt collectors from accepting postdated checks from
consumers, but rather prohibit debt collectors from misusing such
instruments.
WARNING! Many collection agents use automated software
that debits your account on the date of the check!
It is the recommendation of this author that you NEVER
pay by post-dated checks or automatic withdrawals from a checking or savings
account. This opens you up to abuse and does not allow for adjustments if your
budget or income changes!
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6. Section 808(5) prohibits causing any person
to incur telephone or telegram charges by concealing the true purpose of the
communication.
1. Long distance calls to the debt collector.
A debt collector may not call the consumer collect or ask a consumer to call
him long distance without disclosing the debt collector's identity and the
communication's purpose.
2. Relation to other section. A debt collector
who conceals his purpose in asking consumers to call long distance may also
violate section 807(11), which
requires the debt collector to disclose his purpose in some communications.
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7. Section 808(6) prohibits taking nonjudicial
action to enforce a security interest on property, or threatening to do so,
where
(A) there is not present right to the collateral,
(B) there is no present intent to exercise such rights, or
(C) the property is exempt by law.
1. Security enforcers. Because the FDCPA's
definition of "debt collection" includes parties whose principal business is
enforcing security interests only for section 808(6) purposes, such parties (if
they do not otherwise fall within the definition) are subject only to this
provision and not to the rest of the FDCPA.
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8. Section 808(7) prohibits "Communicating
with a consumer regarding a debt by post card."
1. Debt. A debt collector does not violate
this section if he sends a post card to a consumer that does not communicate
the existence of the debt. However, if he had not previously disclosed that he
is attempting to collect a debt, he would violate section
807(11), which requires this
disclosure.
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9. Section 808(8) prohibits showing anything
other than the debt collector's address, on any envelope in any written
communication to the consumer, except that a debt collector may use his
business name if it does not indicate that he is in the debt collection
business.
1. Business names prohibited on envelopes. A
debt collector may not put on his envelope any business name with "debt" or
"collector" in it, or any other name that indicates he is in the debt
collection business. A debt collector may not use the American Collectors
Association logo on an envelope.
2. Collector's name. Whether a debt
collector/consumer reporting agency's use of his own "credit bureau" or other
name indicates that he is in the collection business, and thus violates the
section, is a factual issue to be determined in each individual case.
3. Harmless words or symbols. A debt collector
does not violate this section by using an envelope printed with words or
notations that do not suggest the purpose of the communication. For example, a
collector may communicate via an actual telegram or similar service that uses a
Western Union (or other provider) logo and the word "telegram" (or similar
word) on the envelope, or a letter with the word "Personal" or "Confidential"
on the envelope.
4. Transparent envelopes. A debt collector may
not use a transparent envelope, which reveals language or symbols indicating
his debt collection business, because it is the equivalent of putting
information on an envelope.
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