Fair Debt Collection
The Fair Debt Collection Practices Act, or FDCPA, governs how a debt collector can go about locating an alleged debtor. In doing so, section “b” of the act protects debtors from the third-party disclosure of personal information, and also protects people who don’t owe money yet are still being contacted by a debt collector.
For example, it’s generally a violation of the FDCPA for a debt collector to disclose to anyone other than a spouse or legal guardian that you owe a debt. In fact, with only limited exceptions, the debt collector cannot even tell a third party that he is a debt collector, he can only identify him or herself and state that he is trying to locate you. Similarly, a debt collector cannot keep calling third parties looking for you, but rather, can generally call or write only once.
Likewise, when writing a third party, a debt collector cannot use words or logos on an envelope or even in the letter itself that indicates the letter is from a debt collector or relates to the collection of a debt. This means no post cards as well.
Last, once the debt collector has reason to know the consumer is represented by an attorney, the debt collector must stop communicating with the consumer or any third parties immediately. So anytime a debt collector contacts or credit reports you, it’s worth inquiring into whether your rights under the FDCPA have been violated. If your rights have been violated, even in a technical manner you don’t recognize, you may be entitled to a monetary award from the collector, even if you have suffered no harm. The debt collector must also pay your attorney fees, meaning you can usually enforce your FDCPA rights at no cost to you.
And even if the FDCPA wasn’t violated or doesn’t apply for one reason for another, the collector or someone else in the account chain may have violated other rights of yours, for example, the original loan or credit application may have violated the TRUTH IN LENDING ACT or the account could be improperly credit reported in violation of the FAIR CREDIT REPORTING ACT. Things like collection letters, collection voice mails, collection call logs, loan documents and detailed notes of conversations with collectors, as well as credit report entries showing collector pulls and reporting, can each form powerful evidence and help you to turn the tables in the fight against debt collection.
15 USC 1692b
Debt collectors communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall:
1692b(1)
Identify themselves, state that they are confirming or correcting location information concerning the consumer, and, only if expressly requested, identify their employer;
Analysis
Although the FDCPA generally protects a debtor’s privacy by limiting debt collector communications about personal affairs to third parties, it recognizes the need for some third party contact by collectors to seek the whereabouts of the consumer.
This assumes the collector is talking to someone other than the consumer such as a parent, sibling, neighbor, friend, employer and so forth. Discussing or providing any other information violates the law thus opening up the possibility of being sued for civil penalties.
IMPORTANT: However, your spouse and legal guardians are not considered a 3rd party and collectors are free to discuss your debt with them!
1692b(2)
Not state that such consumer owes any debt;
Analysis
A debt collector seeking location information must identify themselves by name, but must not identify his employer unless asked. When asked, however, the collector must give the true and full name of the employer to comply with this provision and avoid violating other sections of the FDCPA.
An individual debt collector may use an alias if it is used consistently and if it does not interfere with another party’s ability to identify him (e.g., the true identity can be ascertained by the employer), and the collection laws of his or her state allow the same.
Telling a third party that you owe a debt is illegal! First, it may not be true thus unjustly damaging your reputation and second, it is simply nobody else’s business.
1692b(3)
Not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
Analysis
Debt collectors may not refer to the consumer’s debt in any third party communication seeking location information, including those with other creditors.
To prevent annoying or harassing phone calls, or phone calls meant to embarrass you, the law says a debt collector may only call a third party for location information once. The exception to this rule is if the debt collector has reason to believe the information provided is incorrect or misleading (the third party attempts to throw the collector off the trail) then the collector may legally call back.
IMPORTANT: Once collectors have your location information they have no legal reason to call a third party and doing so violates this section.
1692b(4)
Not communicate by post card;
Analysis
This rule is to protect your privacy; post cards can be viewed by anyone.
1692b(5)
Not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and FDCPA Discussion
Analysis
Reference to debt collector’s business (Section 1692b(5)). A debt collector may not use his actual name in his letterhead or elsewhere in a written communication seeking location information, if the name indicates collection activity (such as a name containing the word “debt,” “collector,” or “collection”), except when the person contacted has expressly requested that the debt collector identify himself.
Once again this is a privacy issue. It’s possible the debt collector has the wrong person so the FDCPA is written to protect against damaging one’s reputation by preventing the collector from advertising an overdue debt to the public.
1692b(6)
After the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to the communication from the debt collector.
Analysis
Once a debt collector learns a consumer is represented by an attorney in connection with the debt, he must confine his request for location information to the attorney.
IMPORTANT: Once you or your lawyer inform the debt collector you are represented, the debt collector may only contact your lawyer or its an immediate violation.
(Pub. L. 90–321, title VIII, § 804, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 876.)