In today’s day and age, more and more people are utilizing credit cards and depending on the extension of lines of credit to fulfill their daily needs. Unfortunately for the average everyday consumer, when they become even the shortest length of time behind on their payments, the creditors and debt collectors start calling.
It might start with one phone call. Then two. The phone calls might come in the morning, before you go to work, or they might keep calling late into the evening, when you are trying to go to bed. They might start sending letters, or calling your employer. Even more troubling, a collection agency might fail to identify themselves as a bill collector and instead claim to be calling from a law enforcement agency. Scariest of all, a debt collector might tell you that you will go to prison or that your property will be seized if you fail to pay the debt, claim that you’ve committed a crime or even threaten the use of violence against you or a loved one. Not only is this behavior appalling, but it is illegal.
Knowing Your Rights
Both Federal and Florida law protect consumers from the harassment of debt collectors. How, when and to what extent a debt collector can contact you regarding an unpaid debt is regulated by law. Under the Federal Fair Debt Collection Practices Act (FDCPA) debt collectors are required to disclose certain information when speaking with you about the debt you owe and are also limited as to how they are allowed to go about collecting that debt. Certain words and mechanisms utilized by debt collectors—such as abusive language or falsely claiming to be an attorney—simply are not tolerated under Federal law.
Under the FDCPA, the first time a debt collector calls you, he or she is required to explicitly state to you that he or she is attempting to collect a debt. Moreover, the debt collector must advise you that any information that you give to them during that phone call can be used for the purpose of collecting that debt. In addition, debt collectors should not be contacting you to collect a debt if they are aware that you are represented by an attorney in regards to the debt.
The FDCPA limits the communications that a debt collector can have regarding your debt with a third party (such as your family or employer). With the exception of communicating with a third party to obtain information for the purpose of acquiring your location, a debt collector may not communicate with any person other than you as the consumer regarding the collection of the debt.
The FDCPA also proscribes a debt collector from engaging in any conduct which is aimed to harass, oppress or abuse any person in connection with the collection of a debt. Specific violations outlined in the FDCPA include:
- The use of violence, threat of violence, or other criminal means to harm the physical person, reputation or property of any person;
- The use of obscene or profane language which is aimed at abusing the hearer or reader;
- The publication of a list of consumers who allegedly refuse to pay debts (with the exception of a list reported to a consumer reporting agency and other persons meeting the stringent requirements of the FDCPA);
- The advertisement for sale of any debt in order to try to coerce payment of the debt from the consumer;
- Calling the consumer repeatedly with the intent to annoy, abuse or harass any person at the phone number that is called or calling you at inconvenient times without your permission. The hours between 9 pm and 8 am are presumed to be inconvenient.
The FDCPA also regulates debt collectors by forbidding the use of false, deceptive and misleading representations or means in connection with the collection of any debt. Among others, the following conduct is specifically prohibited by the FDCPA:
- The false representation or implication that the debt collector is vouched for or affiliated with the United States or any State. This includes the use of any badge or uniform;
- The false representation of the character, amount or legal status of the debt;
- The false representation or implication that any individual is an attorney or that any communication is from an attorney;
- The representation or implication that nonpayment of the debt will result in arrest or imprisonment;
- Communicating or threatening to communicate to any person credit information which is known or which should be known to be false. This portion of the law includes the failure to communicate that a disputed debt is in fact disputed by the consumer;
- The false representation or implication that documents are legal process;
- The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
If you as the consumer notify the debt collector in writing within 30 days after the initial communication by the debt collector that any portion of the debt is disputed, or if you request the name and address of the original creditor, the debt collector must cease collection of the debt or any disputed portion of the debt, until the debt collector obtains verification of the debt or the names and address of the original creditor and a copy of that information is mailed to you.
Although the FDCPA provides consumers with much needed protection from debt collectors by enforcing the above provisions, it is important to remember that the FDCPA only applies to debt collectors as opposed to original creditors. Thus, to bring a claim for violations of any of the foregoing provisions, it must be a debt collector who has engaged in the above activities. Thankfully, however, the State of Florida has provided its consumers with extra protection from creditors and debt collectors who engage in abusive collection practices, above and beyond those provided by Federal law. Florida’s Consumer Collection Practices Act (FCCPA) applies not only to debt collectors, but also to original creditors.
Florida law prohibits much of the same conduct outlined above, as well as, among others, the communication or threatened communication with a debtor’s employer before obtaining a final judgment against the debtor (unless the debtor gives permission in writing to contact the employer or acknowledges in writing the existence of a debt after it has been placed in collection). The FCCPA also disallows the disclosure of information concerning the existence of a debt known to be disputed by the debtor without disclosing the fact that the debt is disputed and the advertising or threatened advertising for sale of any debt (i.e., the publication of a “deadbeat list”) for the purpose of attempting to enforce the collection of the consumer’s debts. Many other provisions of the FCCPA mirror its Federal counterpart, both of which are aimed at putting an end to abusive and deceptive debt collection practices.
Having an understanding of your rights under both Federal and State law allows you to fight back against debt collectors and creditors who are using illegal means to try to collect a debt from you. Debt collectors, while assumed to be familiar with the laws that regulate their behavior, often times ignore its provisions or engage in behavior that falls in the “gray” area, leaving consumers uncertain as to whether their debt collectors have violated their rights under the law. Whether or not your creditors or debt collectors have violated your rights is often a very fact specific inquiry. Because of that, it is important to speak with an attorney who has knowledge of how the courts are handling such claims. If you feel your rights are being violated, you may be able to bring a civil action and obtain money damages. The purpose of the consumer protection statute is to dissuade creditors from engaging in harassing collection processes. Our judicial system has made clear that certain behaviors and abusive practices not only will not be tolerated in today’s society, but will allow a consumer to fight back in the courts. Please contact attorney Julia Dolman at Dolman Law Group if you feel that you have been the target of illegal debt collection practices. I can be reached by phone, 727-451-6900 or email, Julia@dolmanlaw.com
Please consider reviewing our website to discuss our qualifications or read more about Creditor Harassment and Unfair Debt Collection Practices at https://www.dolmanlaw.com/practice-area/creditor-harassment-debt-collection/