Posts Tagged ‘Misleading’
Duty to Reinvestigate by the Consumer Credit Reporting Agencies
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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The Fair Credit Reporting Act is designed to protect consumers from inaccurate or outdated information on credit reports.
CONSUMER REPORTING AGENCY REINVESTIGATIONS and The Fair Credit Reporting Act
All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.
The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to conduct a reinvestigation and the procedures around that reinvestigation.
The section that discusses the requirements for reinvestigation of a disputed item is 15 U.S.C. §1681i.
As usual, we start with the statute. Please note that we will only be reviewing the section on reinvestigations, so the rest of the section will not be reprinted or discussed.
(a) Reinvestigations of disputed information
(1) Reinvestigation required
(A) In general
Subject to subsection (f) of this section, if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.
(B) Extension of period to reinvestigate
Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.
(C) Limitations on extension of period to reinvestigate
Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.
This section requires a Consumer Credit Reporting Agency to conduct a reinvestigation of their own if a consumer disputes the completeness or accuracy of an item in a credit file.
If a consumer disputes an item (called a tradeline) on a credit file (most people call it a credit report), they have to do certain things. One of the things they must do is an investigation of their own. They are not allowed to just believe the information that is passed to them by the furnisher of the information. This is called parroting, and courts around the country have said that this is prohibited. See, eg: Cushman v. TransUnion, 3rd Cir, 1997. They must look for themselves.
REMEMBER- The Fair Credit Reporting Act is about ACCURACY. If the item you are disputing is accurate and complete, there is no right to sue. This law is NOT strict liability- this means that you must show that they did something wrong, and that as a result of the fact that it is inaccurate and their reinvestigation did not solve the problem, that you suffered actual damages.
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
What is unfair or unconscionable under the Fair Debt Collection Practices Act
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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 “unfair or unconscionable” under the Fair Debt Collection Practices Act?
As usual, we start with the statutory definition. Thanks to LII.
15 U.S.C. §1692f says
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
So, a collector is not permitted to ask for any money unless it is an amount allowed for by law or by agreement. Examples of this are collection fees, or more commonly, fees for how you pay. For example, if you pay by phone, some collectors charge a fee for pay by phone. This is an illegal charge under the Fair Debt Collection Practices Act.
Post dated checks are another problem under the Fair Debt Collection Practices Act. If the collector accepts a post-dated check, they must not deposit the check until the date you specify. If that date is more than 5 days away, they must notify you in writing that they are going to deposit the money before they do so.
They also are not permitted to solicit a post-dated check, if the purpose of this is to charge you with a crime if the money is not there.
They cannot hide the charges, for example, by doing a collect phone call. This is prohibited under the Fair Debt Collection Practices Act. Other examples are calls to cell phones where you have a per-minute charge (I know this is relatively rare in these days of unlimited minutes, but it was more common), or if they communicate by text message, and you are charged a fee for receiving text messages. Text messages are a whole problem unto themselves, and we will dedicate a blog to that another time.
Postcards an markings on envelopes that identify the business are improper, also, under the Fair Debt Collection Practices Act.
The only provision of the Fair Debt Collection Practices Act that applies to repossession agents is the section on repossessing or foreclosing on something that they do not have the right to do so. 15 USC 1692f[6]. A repossession agent is not permitted to repossess a car if there is no present right to repossess the car. They cannot foreclose if they are not permitted to do so. When are they not permitted to do so? If there is no loan on your car or house. If you are current on your car or house payments, this would also potentially violation the Fair Debt Collection Practices Act. There will be a longer post on that another time.
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
Maximum Possible Accuracy requirement of the Fair Credit Reporting Act
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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.
MAXIMUM POSSIBLE ACCURACY and The Fair Credit Reporting Act
All references to code sections are courtesy of the Legal Information Institute at Law.Cornell.edu.
The Fair Credit Reporting Act requires the Credit Reporting Agencies, or Consumer Reporting Agencies to have a procedure to assure “maximum possible accuracy”.
The section that discusses the requirements for maintain a credit file is 15 U.S.C. §1681e subsection [b].
As usual, we start with the statute. Please note that we will only be reviewing the section on maximum possible accuracy, so the rest of the section will not be reprinted or discussed.
(b) Accuracy of report
Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
The key term here is that the Fair Credit Reporting Act regulates information that is about you by making it illegal to report inaccurate or outdated information.
So, what is inaccurate?
- Not your account (you never opened or used the account, etc.)
- Illegal use of your account (someone charged something to your account but it was not you)
- Wrong status (Bankrupt, they changed the age of the account, you were never late, etc.)
NOT YOUR ACCOUNT
This comes in 2 major varieties, with some minor variations.
- Identity theft
- Mixed credit file
Identity theft is where someone other than you opens an account in your name, using your name, your social security number, your date of birth, but you never see the account, the card, or the money.
Mixed credit file is where your name is similar to someone or your social security number is similar to someone. In this circumstance, the credit bureaus cannot tell the difference between the 2 of you, so what is on 1 is on both.
ILLEGAL USE OF THE ACCOUNT
This is where you have a credit card with a company, but someone steals your card, and uses that card to purchase things for themselves. This is classic credit card theft.
Another example is where you have the account, but someone steals the card number, and uses that card number to purchase things for themselves or others. This is the newer version of credit card theft.
WRONG STATUS
This is the situation of a paid off account that shows that you owe money.
This can also be an account that shows that you were late when you never were. There are a number of credit card companies that play games, and they might receive the money on the 10th, when the payment is due, but they don’t process the check until after the 20th when it is late. Then they report that you were late, and charge you a late fee. A secret about me —First Tennessee Bank did this to me in the 80s and 90s, and this is one of the reasons I went into consumer law. Another example is mortgage companies that do the same thing.
Bankrupt accounts reporting as still due and owing, or charged off. This is a common problem.
Accounts that are delinquent often go to Debt Collectors. Sometimes they change the date the account first became delinquent, which is the key date the Credit Reporting Agencies use to determine when the account comes off your credit report. Most delinquent accounts can only be reported for 7 years, but some can be reported for 10 (for example Bankruptcy) and others can be reported for as long as they are outstanding (for example tax liens). There is no time limit for a good account to be reported.
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.
In each of these cases, the key thing is that the information is inaccurate. Remember, the Fair Credit Reporting Act can only help fix problems of false, inaccurate information. If the information is true, you cannot remove that information, no matter how much you might try.
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
What is a consumer debt
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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 second question that is key to ask, is What is a debt that is covered by the act?
Not all debts are “debt” for purposes of the Fair Debt Collection Practices Act.
We always start with the statutory definition.
16 USC 1692a[5] says “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
What this means is that if the debt was incurred to pay for something for you, or your houshold, it is a consumer debt. Examples include credit cards used to pay for family vacations, groceries or gas. It includes your store brand credit cards, if you use them for your self. Your car, if its for your personal use.
It does NOT include debts that are for business, or debts that are not from a transaction.
Lets go over some examples of not-transactions
Taxes, fines, levies, and other tort damages, like car wrecks or assault or shoplifting debts. These are debts that you owe, but there was no bargained for transaction. You did not do something, like negotiate for how much you would pay in taxes, and get something in return (well, maybe you did get something, but police protection, fire departments and roads are not something you negotiate for, you get them because you live there).
A car wreck is another perfect example. You did not agree to get into a car wreck and cause $5,000.00 in damages. You had an accident. This is a tort, called negligence.
So what IS covered?
Basically, anything that is a contract.
Your car loan, for the car that you use to take the kids to soccer, go to the grocery store, and drive to your place of employment, is a contract, for a purchase that you made for your personal use, and for the good of your household. But if you use that car for work- for example, a delivery driver, that car may not be a “personal” use car. It may be a business use.
How about store cards? Lets use a home improvement/hardware store card, as our example, because we can have that for many different purposes.
Lets says you have a credit card with the store, and you want to build a deck on your home. So, you charge the materials, and the brand new circular saw, and the saw horses, and the hammers, and all the other stuff. You are building a deck on your home. This is a debt for personal, family or household purposes.
Lets say you are a contractor, building a deck on a customer’s house. So, you charge the materials, and the brand new circular saw, and the saw horses, and the hammers, and all the other stuff. You are building a deck on your customer’s house. You make a living (we assume) doing construction, so the debt to the store is for a business debt, not a consumer debt. This debt would NOT be covered by the Fair Debt Collection Practices Act.
How about a check to the local grocery store?
The same analysis applies.
Did you buy groceries for you and your family? That is a consumer debt, and is covered by the Fair Debt Collection Practices Act.
Did you buy groceries because you are a caterer, and need supplies for your next job? That is NOT a consumer debt, that is a business debt, and not covered by the Fair Debt Collection Practices Act.
Why is this important?
Because when a debt collector does something that is abusive, false or misleading or unfair, to collect on a CONSUMER debt, they violate the Fair Debt Collection Practices Act. A violation of the Fair Debt Collection Practices Act allows you to sue a debt collector for actual damages, an additional $1,000.00, plus attorneys fees and costs. Please note that the $1,000.00 is NOT per violation, but for all violations that occur.
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
What is the difference between a creditor and a debt collector?
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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.
- 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.
- 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.
- 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.
- 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
TeleSpoofing
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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
What is FALSE or MISLEADING under the FDCPA?
KCLS LIMITS THE GEOGRAPHY IN WHICH WE TAKE CASES.
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 (11th 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.
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