Fair Debt Collection
The FDCPA, or Fair Debt Collection Practices Act, find its teeth in section “k” which imposes civil liability upon any person or business who violates the FDCPA. In other words, you can be entitled to a monetary award from the debt collector, even if you suffered no harm, anytime your FDCPA rights are violated. You can also get compensated for any actual harm you have suffered, as well as have your attorney fees paid by the collector, meaning it generally costs you nothing to enforce your FDCPA rights. So anytime you hear from a debt collector or see one on your credit report have the collection account reviewed by an experienced Fair Debt attorney, your money is too important to just guess as to whether your rights have been violated.
To start, the act allows you to recover any actual damages suffered by the collector’s violations. Actual damages can include monetary loss, for example, you are wrongfully garnished, and also include compensation for emotional distress a debt collector causes you.
Next, the law allows you to recover a statutory penalty in instances the debt collector’s violations cause you no actual harm. This is the most frequent method for recovering FDCPA damages, mainly because of the law’s technical requirements—what most non-lawyer consumers don’t know and the things collectors figure are the easiest to slip by the average person. These statutory damages can go as high as one thousand dollars and are an award to you for bringing the claim.
Last, you can recover your attorney fees for bringing a successful FDCPA case. This means you don’t have to pay an attorney to represent you in an FDCPA claim against a debt collector and the attorney can instead rely on payment directly from the collector. This is often the FDCPA’s biggest weapon against a debt collector’s prolonged fight.
And even if the FDCPA doesn’t apply or wasn’t violated for one reason for another, the collector or someone else in the account chain may have violated other rights of yours, for example, the account could be improperly credit reported in violation of the FAIR CREDIT REPORTING ACT or they could be using a dialer to ring your phone in violation of the TELEPHONE CONSUMER PROTECTION ACT. Things like collection letters, collection voice mails, collection call logs, and detailed notes of conversations with collectors, as well as credit report entries showing collector pulls and reporting, can each form powerful evidence in the fight against debt collection and help you to level the playing field.
15 U.S. Code § 1692k – Civil liability
1692k(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)
(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.
Analysis
The FDCPA allows you to recover any for actual damages suffered. Actual damages for FDCPA violations include both out-of-pocket actual expenses, as well as damages for personal humiliation, embarrassment, mental anguish, or emotional distress.
IMPORTANT, in situations where the debt collection rules are violated, but you suffer no actual harm (for example, a collector’s technical “G violation”), the law requires a penalty to the debt collector/award to you in an amount up to one thousand dollars! The collector also has to pay your attorney fees, meaning it is no cost to you to enforce your FDCPA rights. Class actions may also be pursued and are an effective way to get a debt collector’s attention.
Finally, the FDCPA makes the collection agency itself liable for the violations of its collector employees, and because the employees of a debt collection agency are also “debt collectors,” they are liable for violations to the same extent as the agency.
1692(b) Factors considered by court
In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors—
(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional.
1692k(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
Analysis
This is an affirmative defense, meaning the collector bears the burden of proving each element of this three part analysis.
1692k(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
Analysis
The statute of limitations can start from the date of collections on the account, or the date of the particular communication that violates, but is at most one year so its critical you timely update your FDCPA files in our free FDCPA file builder system.
1692k(e) Advisory opinions of Bureau
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Bureau, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(Pub. L. 90–321, title VIII, § 813, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 881; amended Pub. L. 111–203, title X, § 1089(1), July 21, 2010, 124 Stat. 2092.)