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The Fair Debt Collection Practices Act
Understanding the Fair Debt Collection Practices Act (FDCPA)
What is the FDCPA?
- FDCPA stands for the Fair Debt Collection Practices Act – 15 U.S.C. § 1692,
- The FDCPA is a Federal Regulatory Scheme designed to limit abusive collection practices passed in the late 70s,
- The FDCPA is a per se liability statute, meaning there is no requirement to prove willfulness,
- An FDCPA violation is like a speeding ticket, if you speed, you pay the fine – but only if you’re caught.
The PartiesWho does the FDCPA apply to? A) Consumers
- A Consumer is someone who is not a business and incurred a debt for a personal, family or household reason (This can be a house, car, credit card for normal living expenses, ect.).
- A Debt Collector is someone who seeks to collect a debt originated by someone else (Suttel & Hammer, Zwicker & Associates, RCO Legal, ect.) – This law does not cover the original creditor/lender (Bank of America, Wells Fargo, Sears, ect.).
- What types of behavior violate the FDCPA?
- Are collection companies leaving voicemail messages for collection? (Voicemail can be revealed to third parties inadvertently).
- Does the collector call often (more than once a day?) (Collection contacts must be conducted in a reasonable manor, between 8 am and 9pm).
- Any collection calls received at work? (A big no no).
- Did the collector begin mailing notices and was any written response sent? If so what did the response say? (If the debtor wrote a dispute letter to the creditor and it was ignored, this is actionable).
- Did a collector call and fail to identify themselves or the company they work for or otherwise not indicate they were calling to collect a debt? (The collector must always identify the company they work for and advise regarding their purpose).
- Has the collector contacted any person other than the Debtor? If so what did they tell that other person? (It is illegal for a collector to inform any other party besides the debtor that the debtor owes a debt and may only request location information).
Foreclosure Cases – Actionable under the FDCPA
- Did a new servicer on a mortgage take over after missed payments?
- Did the new servicer fail to review or otherwise ignore letters regarding Loan Modification (This is a RESPA case).
- Did the New Servicer send letters or documents when the old servicer knew of attorney representation?
Proving the Case
- FDCPA violations are all about proof.
- The best way to prove improper collection contacts is to keep a phone log listing time, date and phone number that called. This will help if we need to pull a phone bill and will assist later in testimony before a judge or jury.
- If you sent the collection company a letter, we need a copy and better yet a certified mailing notice, to prove it was delivered to the creditor.
- Keep all voicemails.
What happens next?
- The attorney will help put together a cause of action and get the calls to stop
- A lawsuit will need to be filed to bring the collectors behavior to the attention of the Court.
- We can recover some damages through the lawsuit.
- The attorney works on a contingent basis.
- Don’t let collectors walk all over you, call us today to take back your phone and your rights!
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