You just received a call from a debt collector. But, you are not sure if it violated your rights. How might you know?
The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, et seq., is a powerful federal statute covering almost all aspects of consumer debt collection. It does not protect debtors who owe business or commercial debts, however. If you are alleged to owe a debt of a personal, family, or household purpose, the FDCPA says what a debt collector can and can’t do.
Take your phone call. Let’s assume the following was said by you and the debt collector (DC):
You: Hello?
DC: Jim Smith, please.
You: This is he; who’s calling.
DC: Mr. Smith, I’m calling about your Capital One account. I need payment in full today.
You: Where are you calling from?
DC: What are your intentions regarding the $2,390.00 you owe? I need payment today.
You: I don’t know who you are or where you are calling from. I’m not making a payment to you.
DC: You refuse to pay your bill?
You: That’s not what I said.
DC: O.K. So you refuse to pay the bill. Be advised that if you don’t pay, I will sue you and report the debt to the credit bureaus. Also, know that I will garnish your wages.
You: Can you send me something in writing? I am not sure I owe this.
DC: You don’t know you owe this? Maybe I can send the garnishment order to your employer. Will that help you remember?
You: I don’t think you have to do that? What are my options?
DC: Well, today we have a special, and I want to work with you, Mr. Smith. If you pay 70% of the debt today, I will accept that as payment in full. That comes to about $2000.00 and a small price to pay before getting your employer involved. I hate getting the employer involved because if they fire you, it’s harder for me to make you pay me.
You: I don’t have that much.
DC: How much do you fuckin’ have, Mr. Smith…
This hypothetical – but not all too uncommon – telephone call violated numerous sections of the FDCPA. Some violations are:
Failure to state “that the telephone call is an attempt to collect a debt and that anything you say will be used for that purpose” violates the FDCPA. This is known as the “mini-Miranda.”
Threatening to contact your employer or any other person without lawful right violates the FDCPA. There can be no “garnishment order” without 1) a lawsuit being filed against you, 2) service of the lawsuit on you, 3) judgment for the debt collector, 4) an application for a garnishment order, and 5) a judge granting the application. Here, the debt collector skipped five steps. Further, courts garnish wages, not debt collectors.
The debt collector offered to settle the $2390.00 for 70% or $2000.00. In reality, 70% would equal $1673.00. This violates the FDCPA because the debt collector made a misleading or false statement.
The debt collector’s use of foul language violates the FDCPA as well as all other profanity, cuss, and curse words.
If you receive any type of phone call from a debt collector similar to this one, take very, very good notes and keep a log. Then contact an experienced consumer rights attorney right away!