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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.
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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.
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Krumbein Consumer Legal Services, Inc.
1650 Willow Lawn Drive
Richmond, VA 23230