The FDCPA regulates what debt collectors can and cannot do in their attempts to collect a debt.
Among other no-no’s, debt collectors cannot call you at work once they know it’s inconvenient, debt collectors cannot reveal your debt to third parties, and cannot mislead you about debts past the statute of limitations.
The FDCPA also prohibits excessive phone calls. And if you receive calls to your cellphone, the Telephone Consumer Protection Act provides additional protection.
Excessive phone calls
15 U.S.C. 1692d(5) prohibits “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.”
Repeatedly or continuously is not defined in the FDCPA, but it’s an issue the courts have looked at repeatedly. Most consider it a fact specific inquiry. For example, if a consumer is negotiating a settlement agreement with a debt collector, repeated calls that day may be permissible.
On the other hand, if a consumer disputes a debt and receives numerous calls, that may be problematic. If a debt collector calls four times and leaves four messages in one day, that may also be problematic.
The bottom line is that if have received multiple collection calls in one day, it’s worth discussing further with a consumer rights attorney.
Autodialed calls and robo calls
Impermissible robocalls are important because they can violate the The Telephone Consumer Protection Act (TCPA). The TCPA provides wide protection against robocalls, calls using automatic dialers, and automated messages. For the most part, the TCPA comes into play when debt collectors make collection calls to consumer cell phones. If a debt collector makes impermissible robocalls to a consumer’s cell phone, the debt collector is liable for $500 per call. If it can be proven that the calls are willful, the damages are $1,500 per call.
The trickiest part to proving a TCPA violation is the issue of consent—whether there was consent to call a consumer’s cellphone. In 2008, the FCC determined that there must be prior written consent in order to call a consumer’s cellphone. In that declaratory order, the FCC also explained that the creditor bears the burden of establishing consent, as they are in the best position to prove that.
In a more recent decision, however, a Federal Court of Appeals refined that definition, holding that consent is only given if the consumer provided their cellphone number at the time of the credit application. In addition, the application must relate to the debt that is being collected on. In other words, if you did not list your cellphone on your original credit card application, you may not have consented.
In many cases, it’s easy to prove there was no consent, because the consumer did not even have a cellphone, or their current cellphone number, when they opened the account.
Are you receiving illegal robocalls?
If you receive more four a calls a day on your cellphone from a debt collector, a debt collector may be calling you with an autodialer or computer program. If you answer a call and nobody is there, that’s another sign of an autodialer. Or if you receive voicemails from a debt collector with a prerecorded message or part of the message includes a computerized voice, you might be receiving robocalls.
As noted above, however, there is still an issue of whether you provided express consent to receive the calls.
If you think you are receiving robocalls, it’s a good idea to contact a consumer rights attorney, like me. I can help you figure out if you are receiving robocalls, what your rights are, and what the next steps are.