For a variety of reasons, consumers frequently find themselves contacted by debt collectors.
Maybe there was a family emergency, a spouse lost their job, or a debt collector is calling trying to locate someone else.
Regardless of why a debt collector is calling, it’s important for consumers to understand their rights against debt collectors.
The FDCPA provides broad and specific protection against debt collectors
The FDCPA was enacted to eliminate abusive debt collection practices, as Congress recognized four major impacts of abusive debt collection practices.
The FDPCA is incredibly broad and also incredibly specific at times. For example, 15 U.S.C. § 1692d provides 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.”
The Act then provides examples of actions that are considered harassing/oppressive/abusive, but also states the examples do not limit the application of 1692d. For example, excessive phone calls to a consumer from a debt collector may violate 1692e(5). This is a frequent complaint of consumers against debt collectors.
Whether or not there are excessive phone calls from a debt collector is a fact-specific inquiry—depending on how many calls, the nature of the calls, etc. Notably, frequent phone calls may also indicate a violation of the Telephone Consumer Protection Act (TCPA), which is also discussed below.
15 U.S.C. 1692e states that “a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” This section also provides specific instances where an action is consider false/deceptive/misleading, but also states that the examples do limit the application of 1692e.
For example, under 1692e(5) a debt collector cannot threaten to take any action that cannot legally be taken or that is not intended to be taken. This typically comes into play when a debt collector threatens to sue a consumer, despite not intending to do so, or lacking the ability to do so. Only attorneys licensed to practice law in the consumer’s state can initiate legal action against a consumer. Another frequent misleading representation is threats of suit on time-barred debt.
The TCPA protects consumers against autodialed and robodialed collection calls
Debt collectors frequently use automatic dialers (auto-dialers) in their attempts to collect debts from consumers. These calls are sometimes referred to as robocalls.
If you receive repeated collection calls in a small time span, the debt collector may be using an autodialer. If you receive voicemails that have a pre-recorded message (sometimes it’s a digitized voice, or a generic recorded message), the debt collector may be using an autodialer. Another telltale sign is when a consumer answers the phone and there is nobody on the other end, or it takes a few seconds before someone answers. All of those situations typically mean the debt collector is using an autodialer.
If the consumer never provided consent to be auto-dialed, these calls can be violations of the Telephone Consumer Protection Act (TCPA). Whether or not there was consent hinges is not always a simple analysis.
The FCC has stated that a consumer must provide prior written consent in order to receive calls from an autodialer. The FCC has also ruled that creditors (or debt collectors) have the burden of proving consent–as the creditor is in the best position to prove it.
But even if a consumer provided consent at some point, a consumer can still revoke consent. That issue has been examined a number of times in the past few years. Various courts have reached different decisions, but there are a number of cases establishing that revoking any alleged consent in writing is effective. A number of courts have also ruled that orally revoking consent is also effective.
The bottom line is that if you are receiving robocalls or calls from an autodialer, it’s a good idea to contact a consumer rights attorney to learn more about your rights and potential remedies.
Did something sound weird or make you uneasy?
Many times debt collectors tell consumers something that just doesn’t sound right. It may not be something that is expressly prohibited by the FDCPA, but it just doesn’t seem right. For example, when a debt collector says something that creates a feeling of fear or uneasiness.
Sometimes a debt collector contacts family or friends in an attempt to collect a debt from a consumer. Or sometimes consumers who don’t even owe the debt are contacted and harassed by a debt collector.
Those are all situations where it’s a good idea to contact a consumer rights attorney who can help you understand your rights and your options. The law was enacted to protect consumers—so make sure you know your rights!