Fair Debt Collection
A main objective for Congress when enacting the Fair Debt Collection Practices Act, or FDCPA, was to prohibit debt collectors from making false and misleading representations when collecting a debt. There are numerous examples of acts that violate section ”e,” many of which the average consumer might assume. But many of the FDCPA’s requirements are technical as well (the things most non-lawyer consumers don’t realize), and these technicalities are actually the parts that are most frequently violated. 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.
One thing the act prevents debt collectors from doing is misrepresenting the amount you allegedly owe. This applies when you don’t owe at all, and when you may owe some money, just not as much as they say—usually because of the addition of potentially unauthorized collection fees, late charges or interest.
Similarly, the law prohibits collectors from threatening to take an action that they cannot legally take, or that they don’t intend to take. Examples include telling you that your wages could be garnished when they don’t even have a judgment against you, or telling you that you could be sued for non-payment when the debt is past the statute of limitations.
Likewise, debt collectors who credit report must do so accurately and honestly. This prevents them from reporting false information, but also requires collectors to update your report to reflect the account is disputed whenever you simply dispute the debt.
Last, they can’t mask or disguise the purpose of their communications with you. For example, when they first contact you, they must tell you they are attempting to collect a debt and that any information obtained will be used for that purpose. And in each subsequent call or letter, they must also tell you that the communication is from a debt collector (the “debt mini-miranda”).
So anytime you hear from a debt collector, it’s worth inquiring into whether your rights under the FDCPA have arisen. If a debt collector is violating your rights, you may be entitled to a monetary award, even where you suffer no harm. The debt collector will also have to pay your attorney fees, meaning you can usually enforce your FDCPA rights at no cost to you.
And even if the FDCPA doesn’t apply or wasn’t violated for one reason or 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 the credit payments could be taken illegally in violation of the ELECTRONIC FUND TRANSFER 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 § 1692e
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
1692e(1)
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.
Analysis
This subsection pertains both to overt symbols in correspondence that appear to be government in origin, for example, a collection letter depicting a police badge, as well as oral implications the collector is affiliated with the government.
1692e(2)
The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
Analysis
Examples of common violations under this subsection include a collector falsely implying legal action has begun when it has not, where the collector claims an amount more than actually owed (allegedly due to interest, late charges or other fees, that are not authorized), and where the collector asserts a debt is owed and immediately due and payable, when it is not.
1692e(3)
The false representation or implication that any individual is an attorney or that any communication is from an attorney.
Analysis
A debt collector may not send a collection letter from a “Pre-Legal Department,” where no legal department exists, or send a letter deceptively using an attorney’s name when the debt collector is not an attorney/law firm. And if a creditor falsely uses an attorney’s name rather than its own when trying to collect, the creditor will lose its exemption from the FDCPA’s definition of “debt collector.”
1692e(4)
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.
1692e(5)
The threat to take any action that cannot legally be taken or that is not intended to be taken.
Analysis
A debt collector may not state that he will take any action unless he intends to take the action when the statement is made, and ordinarily takes such action in similar circumstances. He or she may also not state that a third party (e.g., the creditor) will take an action unless there is reason to believe, at the time the statement is made, that such action will be taken. For example, a debt collector may not threaten to report a dishonored check or other fact to the police, unless he actually intends to do so, threaten to attach a consumer’s tax refund unless he has the legal authority to do so, report a debt to a credit bureau if it doesn’t actually report debts, or threaten to illegally contact an employer, or other third party.
A debt collector may also not misrepresent the imminence of an action, when such action is not actually planned. For example, a debt collector’s implication or reference to an attorney or to legal proceedings may mislead the debtor as to the likelihood or immediate legal action. However, if the debt collector has reason to know legal action is unlikely in the particular case, that statement would be misleading. And lack of intent actually bring suit may be inferred when the amount of the debt is so small as to make the action totally unfeasible or when the debt collector is unable to take the action because the creditor has not authorized him to do so.
1692e(6)
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 this subchapter.
Analysis
This often occurs where the debt collector falsely states that the consumer’s account will be referred back to the original creditor, or a different collector, who will be able to otherwise who would take action the FDCPA prohibits the debt collector to take. A debt collector may also not mislead the consumer as to the legal consequences of the consumer’s action or inaction (e.g., by falsely implying that a failure to dispute is an admission of liability).
1692e(7)
The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
1692e(8)
Communicating or threatening to communicate to any personcredit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
Analysis
If a debt collector is reporting a debt to a credit bureau, and knows the consumer disputes the debt (whenever the consumer disputes it, even if after thirty days), he must update the account as “disputed,” and failure to do so violates the Act.
1692e(9)
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.
1692e(10)
The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
Analysis
This is a general “catch all” provision, encompassing actions not expressly listed.
1692e(11)
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.
Analysis
The FDCPA’s “mini-miranda,” this subsection prevents debt collectors from tricking you into providing information by requiring collectors make clear the purpose of the communication is to collect a debt.
1692e(12)
The false representation or implication that accounts have been turned over to innocent purchasers for value.
1692e(13)
The false representation or implication that documents are legal process.
Analysis
A debt collector may not send written communications that deceptively resemble legal process forms. He may not send a form or a dunning letter that, taken as a whole, appears to simulate legal process. However, one legal phrase (such as “notice of legal action” or “show just cause why”) alone will not result in a violation of this section unless it contributes to an erroneous impression that the document is a legal form.
1692e(14)
The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
1692e(15)
The false representation or implication that documents are not legal process forms or do not require action by the consumer.
Analysis
A debt collector may not deceive a consumer into failing to respond to legal process by concealing the importance of the papers, thereby subjecting the consumer to a default judgment.
1692e(16)
The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.
Analysis
The FDCPA does not prohibit a debt collector from operating a consumer reporting agency, but only a bona fide consumer reporting agency may use names such as “Credit Bureau” unless it actually provides credit reporting, a disclaimer in the text of a letter that the debt collector is not affiliated with (or employed by) a consumer reporting agency will not necessarily avoid a violation if the collector uses a name that indicates otherwise.
(Pub. L. 90–321, title VIII, § 807, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 877; amended Pub. L. 104–208, div. A, title II, § 2305(a), Sept. 30, 1996, 110 Stat. 3009–425.)