YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is a DEBT COLLECTOR and how is a DEBT COLLECTOR different from a CREDITOR?

A “Creditor” is defined at 15 U.S.C. §1692a[3]- “The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.”:

A “Debt Collector is defined at 15 U.S.C. §1692a[6]- The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. “  There are some exclusions, that we will talk about (briefly) later.

Why is this important?

In Virginia, this is particularly important, because a debt collector is covered by the Fair Debt Collection Practices Act (FDCPA), and a creditor is not covered by the FDCPA.  A debt collector is subject to regulation (and more importantly, to being sued) for acts that are abusive or harassing, false or misleading, or unfair and deceptive.

A creditor is NOT subject to anything.  A creditor, and their employees may not violate criminal law in the collection of a debt.  Generally, this means that they can’t send someone to your house to beat you up.  That’s about it.  The Fair Debt Collection Practices Act (FDCPA) does not apply.

So, what is a “Debt Collector?”  A debt collector is anyone who uses the phone, mail, telephone, telegraph, or any other thing that crosses state lines, to collect debts that are or were owed to someone else.

The easiest way to explain this is examples.

1. You owe First National Bank of Nonesuch (FNBN) for a credit card.  FNBN’s employees call and violate the law (never mind how, that’s another blog entry, lets just assume that they did something that would violate the law).  FNBN is a creditor.  They did not violate the Fair Debt Collection Practices Act (FDCPA), because the act does not apply to them.
2. You owe FNBN for a credit card, and the account goes into default.  Mean Debt Collector (MDC) has an employee who calls and violates the law (once again, never mind how, that’s another blog entry).  MDC (and their employees) are debt collectors as defined by the Fair Debt Collection Practices Act (FDCPA), so they have violated the law.
3. You owe FNBN for a credit card, and the account does NOT go into default.  Mean Debt Collector (MDC) has an employee who calls and violates the law (once again, never mind how, that’s another blog entry).  MDC is not collecting an account that is in default, so they did not violate the Fair Debt Collection Practices Act (FDCPA), because the act does not apply to them- they are not collecting an account that went into default.
4. You owe FNBN for a credit card, and the account goes into default.  Junk Debt Buyer (JDB) lets you know that they have bought your account, and you should now direct all your payments to them.  Then they call and violate the law (once again, never mind how, that’s another blog entry.).  JDB has violated the Fair Debt Collection Practices Act (FDCPA) because they are debt collectors as defined by the act.

In other states, like North Carolina, California, Florida, and Maryland, creditors are covered by the state laws.  VIRGINIA DOES NOT HAVE A STATE COLLECTION ACT.  The Virginia Consumer Protection Act DOES NOT APPLY to debt collectors.

Read more about what we can do to assist you in protecting yourself from collection harassment or abuse, false or misleading statements or unfair and deceptive acts in the main section of our website.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

ACCESS OF CREDIT REPORTS- PERMISSIBLE PURPOSES

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

The Fair Credit Reporting Act allows certain people to access your credit file or credit report, under certain circumstances.

The section that discusses the permissible purposes for accessing a credit file is 15 U.S.C. §1681b.

As usual, we start with the statute.  Please note that we will only be reviewing the section on permissible purposes, so the rest of the section will not be reprinted or discussed.

(a) In general

Subject to subsection (c) of this section, any consumer reporting agency may furnish a consumer report under the following circumstances and no other:

(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.

(2) In accordance with the written instructions of the consumer to whom it relates.

(3) To a person which it has reason to believe—

(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or

(B) intends to use the information for employment purposes; or

(C) intends to use the information in connection with the underwriting of insurance involving the consumer; or

(D) intends to use the information in connection with a determination of the consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status; or

(E) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or

(F) otherwise has a legitimate business need for the information—

(i) in connection with a business transaction that is initiated by the consumer; or

(ii) to review an account to determine whether the consumer continues to meet the terms of the account.

(G) executive departments and agencies in connection with the issuance of government-sponsored individually-billed travel charge cards.

(4) In response to a request by the head of a State or local child support enforcement agency (or a State or local government official authorized by the head of such an agency), if the person making the request certifies to the consumer reporting agency that—

(A) the consumer report is needed for the purpose of establishing an individual’s capacity to make child support payments or determining the appropriate level of such payments;

(B) the paternity of the consumer for the child to which the obligation relates has been established or acknowledged by the consumer in accordance with State laws under which the obligation arises (if required by those laws);

(C) the person has provided at least 10 days’ prior notice to the consumer whose report is requested, by certified or registered mail to the last known address of the consumer, that the report will be requested; and

(D) the consumer report will be kept confidential, will be used solely for a purpose described in subparagraph (A), and will not be used in connection with any other civil, administrative, or criminal proceeding, or for any other purpose.

(5) To an agency administering a State plan under section 654 of title 42for use to set an initial or modified child support award.

(6) To the Federal Deposit Insurance Corporation or the National Credit Union Administration as part of its preparation for its appointment or as part of its exercise of powers, as conservator, receiver, or liquidating agent for an insured depository institution or insured credit union under the Federal Deposit Insurance Act [12 U.S.C. 1811 et seq.] or the Federal Credit Union Act [12 U.S.C. 1751 et seq.], or other applicable Federal or State law, or in connection with the resolution or liquidation of a failed or failing insured depository institution or insured credit union, as applicable.

So there are several reasons why an entity can get your credit file.  Obviously, if you give them permission, or a judge gives permission, it is permissible.   That requires little explanation.

But section 3 requires a bit more explanation.

They can access your report if you are applying for credit, or someone is collecting, for a background check for employment, or insurance underwriting, or for investment purposes.  They can look if they have a legitimate business need, for a credit transaction or a review of a credit transaction.

The rest of the section is about child support agencies.

But the key factor is that for most purposes, they can only look if there is an underlying credit transaction.

But the key factor is CREDIT TRANSACTION.  In a recent case, the 9^th circuit court of appeals (the 9^th circuit covers Alaska, Hawaii, California, Washington, Oregon, Arizona, Nevada, Montana and Idaho) held that a parking ticket, or traffic ticket was not a credit transaction, so a collector who was using the credit report to collect could not get access. Pintos v. Pacific Creditors Ass’n, 565 F.3d 1106 (9th Cir., 2009). “Because the current case involves neither a transaction for which Pintos sought credit nor the collection of a judgment debt, we conclude that § 1681b(a)(3)(A) did not authorize PCA to obtain the credit report on Pintos.” Pintos at 1110.

These are the reasons that the law allows.  These are ALL of the reasons the law allows.

Now it gets interesting to look at the question of can a creditor or collector look at a credit report if the underlying debt is paid, or discharged.

There is a court of appeals decision that says that a former creditor who was owed money, but is now paid, does have a permissible purpose.  Wilting v. Progressive County Mut. Ins. Co., 227 F.3d 474, 476 (5th Cir., 2000).  There is another court of appeals case that says that a closed account no longer has a permissible purpose.  Levine v. World Financial Network Nat. Bank, 437 F.3d 1118 (11th Cir., 2006).  It is possible to distinguish a paid, closed account from an account that is paid, but with a status that is just inactive.  As a result, impermissible access must be monitored.

A creditor who has been discharged is a horse of a different color.  If they are accessing the report for the purposes of collection, they are knowingly collecting on a discharged debt.  If they are accessing the report for a purpose other than collection, they need to show a new application, or they do not have a permissible purpose.  So, they are either collecting on a discharged debt, or they do not have a permissible purpose.  Collecting on a discharged debt is prohibited by the Bankruptcy code.  Not having a permissible purpose is prohibited by the Fair Credit Reporting Act.  In chess, this is called a fork.  They are losing one or the other.

If someone has been looking at your credit, and does not have a permissible purpose, you may have a right to sue them.  Contact us, for a free consultation, and lets discuss who is looking, and why.

If you have been damaged by any of these actions, you could be entitled to recover actual damages, attorney fees and costs, and in the right circumstances, punitive damages are available.  Getting to punitive damages is very hard, so we usually tell clients that punitive damages are likely to be limited, if available, in their case.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

The first questions to ask in an inquiry is “Am I a consumer who is entitled to protection?”

Lets start with the definition from the statute.

15 U.S.C. §1692a[3] says a “consumer” means any natural person obligated or allegedly obligated to pay any debt.

So, you must be a natural person.  This means that for MOST purposes if you are a business, you are not protected.  There is a key exception.  Harassment or abuse is something that is prohibited in the collection of consumer debts as to ANY person, and for this section (15 U.S.C. §1692d), any person INCLUDES non-consumers– businesses, and other entitles.

But the discussion of consumer does not end there. A consumer also owes or is alleged to owe a consumer debt.

So, just because you are a real person does not mean that you are entitled to protection.  They must owe a consumer debt.  Consumer debts are generally debts incurred for personal, family or household use.  Commercial debts, tort debts, and taxes and fines are specifically excluded.

This means that most people are protected, generally for most usual kinds of debts, but not all.

Read up on What is a “Debt”? next week.

Read more about what we can do to assist you in protecting yourself from collection harassment or abuse, false or misleading statements or unfair and deceptive acts in the main section of our website.

If you have been impacted by any of the things that we have mentioned in this or any other blog post, please contact us.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.

FAIR CREDIT REPORTING ACT BASICS

In this blog entry, we will NOT go into details of what happens or what to do, only the basic outline of what happens and what is supposed to happen when dealing with credit reporting issues under the Fair Credit Reporting Act (FCRA).  It is a little bit long, because there is so much information, but bear with us.

All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.

So what is the Fair Credit Reporting Act?

The Fair Credit Reporting Act, or FCRA, is the law that requires that your credit file, commonly called a credit report be accurate.  It is found in the US Code at Title 15, Chapter 41, Subchapter III, or Title 15 US Code sections 1681 through 1681x.  Prior to the advent of this act, state and local law on defamatory statements were what controlled the dissemination of inaccurate information.  It required a showing of malicious intent, a standard which is pretty hard to ascribe to a corporation or business.

Congress passed the FCRA to protect consumers (individuals) from the credit reporting issues of the Consumer Reporting Agencies, commonly called Credit Reporting Agencies.  For brevity, we will call Consumer Reporting Agencies CRAs for this article.

Later, the FCRA was amended to add protections from actions of furnishers and users of consumer credit files.  Furnisher is not a term that is defined, but has been held to mean any entity (person or business) that provides information to the CRAs.  Users are entities (persons or businesses) that access the information stored at CRAs.

So who are the CRAs?  And who are Users? And who are Furnishers?

The BIG 3 CRAs are Equifax Information Services, LLC (Equifax), Trans Union, LLC (TransUnion) and Experian Information Solutions, lnc. (Experian). There are others, some are up and coming companies that are attempting to challenge the Big 3, like Innovis Data.  Others are “specialty” reporting agencies, like Medical Information Bureau, ChexSystems, and TeleCheck Services.

Users are companies who either you would like to do business with, or THINK you would like to do business with them.  Examples are Discover Card, American Express, Chase, CitiBank and Capital One.  They have a legitimate interest in seeing your credit file, to see if you are the kind of person who pays their bills.  They want to loan money to people who, by and large, pay their bills.  Preferably not all at once, so they can charge interest, but still, you should pay your bills.

Furnishers are the same people as users, only they are providing feedback about how well you pay them.  Examples are Discover Card, American Express, Chase, CitiBank and Capital One.  They are telling other people about their experiences with how you pay your bills- on time, late, or not at all.

So what kinds of things are violations?

The FCRA regulates most portions of the credit reporting industry.

Impermissibly accessing a person’s credit report allows, not only civil damages, similar to invasion of privacy, but in some cases, also criminal penalties.

The CRAs must maintain an accurate file on you, and their failure can lead to civil damages.

The CRAs also must investigate your complaints.  If you tell them something is wrong, they must investigate, tell the furnisher, and if the information is inaccurate or unverifiable, change or delete the information.

Furnishers must also be tasked with reporting to the CRAs your credit reporting history accurately, but, they must be notified properly before you can sue them for those damages. We recommend that you tell the furnisher what they are reporting wrong.  Tell them in detail, and preferably in writing.  YOU DO NOT HAVE A RIGHT TO SUE FOR THE FURNISHER MESSING THIS PART UP.  See 15 USC 1681s-2[c] and [d].

However, if you also notify the CRAs of the inaccuracy, they must send your dispute to the furnisher, and once they get the dispute that way, they must fix the problem, or face the possibility of being sued.  You must dispute to the CRA dispute addresses.  We suggest that you do your dispute in writing, sent by certified mail, return receipt requested.  It is not necessary to do this, but it makes proving that you notified them of the dispute easier.

What can you sue for?

FCRA is not a strict liability lawsuit, like the FDCPA or TILA or other actions.  Technical violations are NOT something you can sue for.  The FCRA is there to protect you from inaccurate information, so as numerous courts have said, you can only sue for information that is inaccurate.  But what is inaccurate?

Examples of inaccurate information are

1. Identity theft, where someone unknown to you (or maybe known to you, but you did not know they were doing this) opened an account that you did not know was being opened.
2. Mixed Credit File, where the CRAs have mixed you up with someone else, and their information is on  your credit report.  Mixed files and ID theft may be very hard to tell apart until the lawsuit has been filed, and discovery has started.
3. Reporting an account that you have paid as still owing.
4. Reaging, where they are reporting that an account that you failed to pay years ago, as a recent failure to pay.  This is particularly common when the statute of limitations has passed for the collector or creditor to sue to collect the money.  Most negative information can only be reported for 7 years, but there are exceptions.  15 U.S.C. §1681c.
5. Bankrupt account reporting, where the consumer has filed Bankruptcy, and the creditor either still, or again, reports the debt as owing or charged off, rather than discharged in Bankruptcy.  This may also be a violation of the discharge of Bankruptcy, 11 U.S.C. §524.

In each of these cases, if the information is there, it can cause damages, such as loss of ability to obtain credit on terms that YOU deserve. This can lead to other issues, which we will discuss in great detail in another blog entry.

If you have been damaged by any of these actions, you could be entitled to recover actual damages, attorney fees and costs, and in the right circumstances, punitive damages are available.  Getting to punitive damages is very hard, so we usually tell clients that punitive damages are likely to be limited, if available, in their case.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FCRA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is TeleSpoofing and is it “false and misleading” under the Fair Debt Collection Practices Act?

TELESPOOFING IN COLLECTIONS

As usual, we start with the statutory definition.  Thanks to LII.

15 U.S.C. §1692d says

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

15 U.S.C. §1692e says

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:

. . .

(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.

. . .

What does this mean for you?

Knoll v. IntelliRisk Management Corporation, 2006 U.S. Dist. LEXIS 77467 (Lexis citation), 2006 WL 2974190(parallel WestLaw citation) (D. Minn. October 16, 2006), says that when a debt collector misrepresents his phone number (by TELESPOOFING) it is a misrepresentation of the identity of the caller, and therefore a misrepresentation that violates the Fair Debt Collection Practices Act.  15 U.S.C. §1692e[10]  It also explains that the debt collector must meaningfully disclose his identity, and by misidentifying themselves be TELESPOOFING, they are not meaningfully disclosing their identity.  15 U.S.C. §1692d[6].

Debt collectors are allowed to use aliases, under some circumstances.  For example, if they have a way to backtrack to determine who called, that would be permissible.

On the other hand, when they refuse to identify the name of the company they work for, they are not meaningfully disclosing their identity, and they are using a false and misleading means to collect a debt.

NON COLLECTIONS TELESPOOFING

But collections are not the only time we need to worry about TELESPOOFING.  Scammers come in all types.  There was a recent new story on my local Fox affiliate, in which they talked about telespoofing.  There are a number of companies that provide the services, and the scammer can appear to be anyone they want to be.  They can be your friend, your neighbor, your child or grandchild.  And they often will ask for money.

In the story on the news, a local lady had a call from someone who said he was her grandson and he had been in an accident, and he needed $5,000.00.  The Caller ID showed that it was from a hospital.  So, she was all too happy to send money to her “grandson”.  Only afterwards, did she realize that it was all a scam.

Can we get that money back?  Maybe, but that will depend on if we are able to identify the culprit.  It is easier with a debt collector, because they will either eventually tell you who they really are, or they will have you send the money somewhere.  But if they have you send the money by Western Union, or other wire service, it may be all but unreachable.

Stay tuned and come visit us NEXT WEEK when we talk about COMMUNICATING WITH THE CONSUMER in collection practices.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

How can a debt collector communicate with a consumer under the Fair Debt Collection Practices Act?

As usual, we start with the language of the statute.

15 USC §1692c(a) Communication with the consumer generally

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location;

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or

(3) at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.

So, what does this mean?

Debt collectors are not allowed to contact you in manners that are inconvenient.  The statute defines what is pre-determined to be inconvenient.  If the debt collector knows that the time or place that they are contacting you is inconvenient, they are not allowed to contact you.  For example, before 8 am or after 9 pm.  There are exceptions to this, for example, if you work night shift, then 8am to 9pm is inconvenient- that’s when you sleep.

But they can’t call you at work if they know that you are not allowed to get personal phone calls at work.  How would they know this?

You can tell them, but that becomes a swearing match- you swear you told them, and they swear you never said that.

You could tell them and record, but many debt collectors are in states that require the consent of all parties to the conversation, so recording may be a crime.  You get the money, but go to jail in the process.  Our opinion is that there is no amount of money for which it is worth going to jail.

But you can write them a letter, and tell them in the letter.  If you send them a letter Certified Mail Return Receipt Requested (CMRRR), you can prove that you sent it and you can prove that they received it.

But you don’t really need that to prove that they did something.  It works just as well to take pictures of your caller ID.

Those work calls can be very annoying.  All you need to do, supposedly,  is tell them you cannot take calls.  They should NOT call back.  But they may do so anyway.

If you have any of these problems, first, you can use our call log, to track these calls, and second- contactus.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

YOU MUST BE A VIRGINIA RESIDENT.

If you are not a Virginia Resident, click here to find a lawyer near you.

The Fair Debt Collection Practices Act is designed to protect consumers from abusive or harassing conduct, false or misleading statements or unfair act by Debt Collectors.

What is “false and misleading” under the Fair Debt Collection Practices Act?

As usual, we start with the statutory definition.  Thanks to LII.

15 U.S.C. §1692e says

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:

(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.

(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.

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

(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.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

(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.

(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

(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.

(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.

(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.

(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.

(13) The false representation or implication that documents are legal process.

(14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.

(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

(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.

What does this mean for you?

Short version is that they cannot lie about anything.   They can’t tell you that you owe money if you don’t.  They can’t tell you that you will go to jail over a regular old debt, (though that might be abuse under the act, also), and they can’t tell you anything untrue, generally.

Lets talk about some of the specifics.

§1692e[2] says they cannot misrepresent the amount, character or status of the debt.  Examples of this are representing that the debt is still owed if you have already won the collection lawsuit, or if you have filed for Bankruptcy.  In fact, there is caselaw that says that collecting on a debt Discharged in Bankruptcy is a violation, Turner v J V D B Assocs Inc, 330 F. 3d. 991 (7th Cir. 2003).  Note that there are defenses that are winnable for the debt collector. And certainly, a junk debt buyer who has sued and lost and still sends letter a- knows you have a lawyer and b-knows they lost and that they are collecting a debt the judges says you don’t owe.

§1692e[3] says that they cannot say they are an attorney if they are not.  Examples of this are when the letter says it comes from an attorney’s office, but the attorney never looked at the letter or the file. But they can put language in the letter that says that no attorney has looked at the file, and that (apparently) makes it all OK.  (I don’t agree, but then I am not a judge.).

§1692e[4] says that they can’t tell you that you will go to jail or that they can garnish you if they can’t.  Examples of this are where they don’t have a judgment, and they don’t sue.  There are lots of debt collectors who just simply don’t sue.  They aren’t lawyers (note the theme from above), and they don’t hire lawyers.  Also, you can’t go to jail for the non-payment of most debts.  There are exceptions.  Some of the exceptions are for checks that are drawn on closed or overdrawn accounts (commonly called bad checks). But a credit card that you didn’t pay, or a payday loan that you did not pay is NOT a criminal violation, and you cannot go to jail.  In fact, for payday loans, it is a violation of the Virginia Payday Lending Act for the payday lender to tell you that you can go to jail for writing a check that bounces (note: a closed account is different- you can go to jail for that.)

§1692e[8] says that they cannot communicate false credit information.  This dovetails into the Fair Credit Reporting Act.  This includes if you dispute the debt, and they don’t bother to tell anyone that you disputed, but somehow, they say that you still owe the money.  There is case law on this point also.  If they update your credit file, they are required to identify your account as disputed.

§1692e[9] says they can’t simulate court documents. This essentially means they can’t send you something that LOOKs like a lawsuit if it is NOT a lawsuit.

§1692e[10] says they can’t use false or misleading means to collect.  This applies to EVERY communication.  Examples of this are when they talk to your neighbors or co-workers (which may violate other provisions also), or tell you something that is not true.  This may be a redundant section, but there are some things that fall into the grey areas that are caught here.

§1692e[11] requires that the debt collector tell you that they are debt collectors.  Often they will forget to use this language in voice-mails. A voice mail left on your voice mail that just says “we are calling about an important business matter, please call us back at phone number ___”  There is actually a name for this syndrome by debt collectors, this violation is called a Foti (after Foti v. NCO)  violation, though I think it should be renamed a Edwards (after Edwards v. Niagra Credit (11^th Cir)) violation.

§1692e[13] dovetails with 1692e[9].  It says they can’t simulate legal process.  That means that they can’t make a document look like a summons or warrant (civil or criminal).

If they are a lawyer or they do sue, §1692e[15] would come into play.  This subsection says that if they send you a summons or warrant, they can’t tell you that its NOT a court document.  Here’s where I have some issues, and we may see a long blog post about this particular issue.  I am not sure that it is (or isn’t) OK for them to sue you (in Virginia, the form is called a Warrant in Debt) and then tell you that you don’t have to show up for court.  Technically, this is half true.  If you owe the money, and you don’t dispute anything, and you are just going to tell the judge that you owe the money, then coming to court for that is a waste of time.  The judge will enter judgment against you.  If you don’t show, the judge will enter judgment against you.  So what’s the difference?  I think that if the collector tells you that you don’t have to show, they should also HAVE to tell you that if you don’t show that a judgment will be entered against you.  What if they agreed to a payment plan?  Did they agree to continue the case and not enter the judgment?  If not, when they agreed to the payment you may end up with a judgment so they can enforce your payment plan.  That MAY be a violation.  I think it falls into a better violation of Unfair and Deceptive act.

Stay tuned and come visit us NEXT WEEK when we talk about UNFAIR AND DECEPTIVE collection practices.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230

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What is abusive under the Fair Debt Collection Practices Act?

Lots of things are “abuse”.  The statute in the Fair Debt Collection Practices Act, or FDCPA is 15 USC §1692d.

§1692d says that “A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. . . “ It then goes on to say that certain things ARE abuse, but the list is not exhaustive.

The list provided in the statute is

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons [that are like a credit reporting agency.  Examples include TeleCheck, ChexSystems, Certigy, Equifax’s check recovery department, and others.]

(4) The advertisement for sale of any debt to coerce payment of the debt.

(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

So, lets go through these.

CRIMINAL THREATS: Obviously, threats of criminal harm should be considered abusive.  When they threaten to send “Vinny” around to break your knees if you don’t pay up—they are threatening to do something to you that is prohibited, not by civil law, but criminal law.  That means if “Rocco” does show up, and break your knees, “Rocco” goes to jail. But under the Fair Debt Collection Practices Act, or FDCPA, “Rocco” whether or not “Rocco” shows up, “Rocco’s” employer get sued.

But it doesn’t really stop there- If they threaten to tell everyone something illegal about you, like a threat to tell the police that you are a child molester, that too is a violation of the Fair Debt Collection Practices Act, or FDCPA

In some states, in fact, threats of criminal harm are also criminal acts, and you can have someone arrested for this.

PROFANE LANGUAGE: Use of profane language abounds in our society.  But some people are prohibited from using such language.  Just think about the words that the Federal Communications Commission prohibits from use on the open airwaves, and only permits on cable/satellite.  You cannot say certain words on the radio or TV.  Those words are prohibited from being used in the context of debt collection.

But the law goes further than that. It also prohibits language that the natural consequence of which is to abuse the reader or hearer.  That means use of racial epithets, being impolite to people based on race, religion or national origin, accent.  These are all examples of “abuse”, and prohibited by the Fair Debt Collection Practices Act, or FDCPA.

PUBLICATION OF LIST OF NON-PAYING CONSUMERS: This means that if you discover that you have been “blacklisted” from obtaining credit or services, or writing checks, or other things, you may have a violation.  Examples here are the Telecheck and ChexSystems networks.  That MAY be considered publication of a list of non-paying consumers if they send a “list” around.  Imagine going into a doctor’s office, and posted there on the wall is a list of people they are not permitted to take a check from.  They used to do this.  Usually, though, it was a list that that doctor had posted, and there was a separate list at the grocery store.  Now, imagine that when you were on the doctor’s list, that there was a central list, and that list was also posted at the grocery store.  That means if you bounce a check at the doctor, you can’t write a check at grocery store, either.  That would be very embarrassing.  And it would be prohibited by the Fair Debt Collection Practices Act, or FDCPA.

ADVERTISING THE SALE OF DEBT: This one is harder to explain.  Imagine that you owe a credit card company- it doesn’t matter who- Capital One, CitiBank, Chase, Applied Bank, First National Bank of Marin, HSBC, it doesn’t matter who- for some reason you run into financial difficulty.  Job loss, divorce, illness, whatever the reason.  The account goes into collections.  The collector, whom we will call “Fictional Collector” threatens to puts into the local newspaper that they own a portfolio of defaulted debts, originally owed to your credit card company, and that you are that portfolio.  They are threatening to advertise for sale your debt.  This would be prohibited by the Fair Debt Collection Practices Act, or FDCPA. In states OTHER than Virginia, this might be an invasion privacy, called publication of private facts, however, the Virginia General Assembly has expressly stated that this is not invasion of privacy, and the courts have upheld that.

MAKING THE PHONE RING: They call, and they call, but the only purpose is to annoy you.  They know that they are only calling to annoy you, abuse you, and waste your time.  The problem with this case is that we must prove what is in their mind.  We have to show that they knew that there would be no point in a call, and they tried anyway.  Good examples of this are multiple calls after they received a letter demanding that they cease communications, or calls where they admit that they knew that they were not supposed to call- they admit that the account is paid, or included in a Bankruptcy.  Its hard, but doiable.

FAILING TO DISCLOSE THEIR IDENTITY: This is the call where they call and say “Can I talk to Joe?” and the person answering says something along the lines of Joe is not here, can I take a message?  And the response is “No, I’ll call back” or something like that.  They are supposed to tell the person who they are.  They are NOT permitted to tell them they are a debt collector, but they must give a name.  So for example, in that situation, if they said something like “My name is Bill, and I am calling about a private matter” that MIGHT be permissible.  But there are OTHER provisions of law that might be impacted.

Stay tuned and come visit us NEXT WEEK when we talk about LIES, FALSE REPRESENTATIONS, AND MISLEADING STATEMENTS.

If you have been impacted by anything we mentioned here, you can make an appointment to see us.

NO FEE IN YOUR FDCPA CASE UNLESS WE RECOVER!!

OUR LEGAL FEES:

The rights afforded to you, as a consumer, under the FCRA and the FDCPA means that a corporation or party who has violated your rights may ultimately be made to pay for statutory damages, actual damages, and your legal fees. Therefore, if we agree to represent you in any case, you won’t pay any attorney’s fees unless we are successful and we recover on your behalf. We are here to serve and have assisted many consumers TO enforce their legal rights. Let us try and see if we can help you too. That means you pay no fee in your case unless we recover.

Contact us by e-mail or by telephone or fax or US Mail.

You can call us: 804.673.4358

You can fax us: 804.673.4350

You can contact us by US MAIL:

Krumbein Consumer Legal Services, Inc.

1650 Willow Lawn Drive

Suite 300

Richmond, VA 23230