FDCPA – the Fair Debt Collection Practices Act: Creditors Have Limits
The Federal Fair Debt Collection Practices Act (FDCPA) is a federal law that limits what actions debt collectors (entities that are not the original creditor) can take when trying to collect certain types of debts. A related law, the Fair Credit Reporting Act, covers how debt collectors can report your debts on your credit reports.
The FDCPA applies to third parties who are collecting on a debt and are not the original creditor. This includes debt buyers, collection agencies, and attorneys who regularly collect debts as a part of their business. The FDCPA usually does not apply to the original creditor.
The FDCPA applies to the collection of credit card debts, medical debts, bank loans, mortgages, and other debts incurred for personal or household purposes. It does NOT apply to business loans.
WHAT CAN’T DEBT COLLECTORS DO?
The FDCPA restricts how debt collectors communicate with you. Debt collectors are prohibited from:
- Contacting you between the hours of 9 p.m. and 8 a.m.
- Contacting your friends, family members, neighbors or co-workers about your debt
- Contacting you at work
- Contacting or threatening to contact your employer
- Threatening to file criminal charges or notify immigration authorities
- Using abusive language
- Harassing you or anyone else through telephone or other means of communication
- Using false, misleading or deceptive information in an attempt to collect a debt
The FDCPA also prohibits a debt collector from continuing to call or contact you:
- If a debt collector knows that you have retained an attorney to represent you regarding that debt, it must stop contacting you for a reasonable period of time and only contact the attorney. If you have retained our office (signed a contract and started paying toward your fees), you can notify any debt collector who calls you to stop calling you and call us only. They generally will then only contact our office for a number of months.
- If you tell a debt collector in writing to stop contacting you, they cannot contact you again except to tell you that there will be no further contact, or to notify you of specific actions in the future such as commencing a lawsuit against you.
- Telling a debt collector not to contact you does not prevent the debt collector from taking allowed legal action against you, such as initiating a lawsuit or reporting the debt on your credit report.
Minnesota has enacted laws which require debt collectors to be licensed by the State of Minnesota. These laws also regulate the conduct of debt collectors, and prohibit a debt collector from:
- Collecting a debt in Minnesota without being licensed;
- Upon initial contact with the debtor by mail failing to state “This collection agency is licensed by the Minnesota Department of Commerce.”
- Threatening wage garnishment or a lawsuit by a particular attorney unless it has actually retained that attorney;
- Threatening or using methods of collection that violate State law;
- Giving legal advice or engaging in the practice of law;
- Communicating with debtors in a misleading or deceptive way by using the stationery of an attorney or using forms or instruments that simulate the appearance of legal forms or judicial process;
- Publish or cause to be published any list of debtors (except credit reporting) to shame debtors, or advertising a debt or claim for sale as a way to coerce or force payment of a debt;
- Using a name or acting in a way that implies that the debt collector is a branch of any government;
- Communicating with a debtor by the use of a recorded message unless the recorded message is preceded by a live operator who discloses the name of the debt collection agency and that the message is intended to solicit payment and the operator obtains the consent of the debtor prior to hearing the message;
- Failing to provide the full name of the collection agency as it appears on its license
DO I HAVE THE RIGHT TO MAKE THE DEBT COLLECTOR PROVE THE DEBT?
Yes! When a debt collector first contacts you, they must provide you with notice that you have the right to “validate” the debt. To demand validation of the debt, you must give written notice to the creditor that you want them to validate the debt within 30 days after receiving notice from the debt collector. If you do not demand validation, the debt collector may assume that the debt is valid. If you do demand validation, the creditor may not continue to try to collect on the debt until it has provided the validation information to you. Unfortunately, Courts have set a relatively low bar for what a creditor must provide to validate the debt, but it must at least provide you with written confirmation that you are the debtor and that the amount it is seeking to collect is valid.
If you receive a summons and complaint, you then have the right to make the creditor prove its debt to you. To do so, you must enter an answer within the time allowed, and then demand that the creditor prove all elements of its case – that you are the person that owes the debt, and that the balance is correct.