The Rokicki Law Firm | Experienced New Jersey FDCPA Attorney
If you’re behind in paying your bills, or a creditor’s records mistakenly make it appear that you are, a debt collector may be contacting you.
The Federal Trade Commission (FTC), the nation’s consumer protection agency, enforces the Fair Debt Collection Practices Act (FDCPA), which prohibits debt collectors from using abusive, unfair, or deceptive practices to collect from you. Under the FDCPA, a debt collector is someone who regularly collects debts owed to others. This includes collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.
If you feel you have been the victim of harassment by unscrupulous debt collectors, give the Rokicki Law Firm a call today at 973 - 671 - 8529 for an experienced attorney to take a look at your claims.
What Types of Debts are Covered?
The FDCPA covers personal, family, and household debts, including money you owe on a personal credit card account, an auto loan, a medical bill, and your mortgage. The FDCPA doesn't cover debts you incurred to run a business.
Who Is a Debt Collector?
A "debt collector" is defined as any person who regularly collects, or attempts to collect, consumer debts for another person or institution or uses some name other than its own when collecting its own consumer debts. Examples of debt collectors include collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.
Debt Collectors That Are Not Covered:
A company is not considered a debt collector under the FDCPA if it collects:
- another company's debts only in isolated instances.
- its own debts under its own name.
- debts it originated and then sold but continues to service (for example, mortgage and student loans).
- debts that were not in default when they were obtained.
- debts that were obtained as security for a commercial credit transaction (for example, accounts receivable financing).
- debts incidental to a bona fide fiduciary relationship or escrow arrangement (for example, a debt held in the company's trust department or mortgage loan escrow for taxes and insurance).
- debts, regularly, for other companies to which it is related by common ownership or corporate control.
Other debt collectors that are not covered by the FDCPA include legal-process servers as well as officers/employees of a company who collect debts owed to the company in the company's name.
When, Where, and with Whom is Communication Permitted?
A debt collector may not communicate with a consumer at any unusual time (generally before 8:00 a.m. or after 9:00 p.m. in the consumer's time zone) or at any place that is inconvenient to the consumer, unless the consumer or a court of competent jurisdiction has given permission for such contacts. A debt collector may not contact the consumer at his or her place of employment if the collector has reason to believe the employer prohibits such communications.
If the debt collector knows that the consumer has retained an attorney to handle the debt and can easily ascertain the attorney's name and address, all contacts must be with that attorney, unless the attorney is unresponsive or agrees to allow direct communication with the consumer.
When Does a Debt Collector Have to Cease Communication?
When a consumer refuses, in writing, to pay a debt or requests that the debt collector cease further communication, the collector must cease all further communication, except to advise the consumer that:
- the collection effort is being stopped, and that:
- certain specified remedies ordinarily invoked may be pursued or, if appropriate, that a specific remedy will be pursued.
Note: mailed notices from the consumer are official when they are received by the debt collector.
Communicating with Third Parties
With an important exception, the only third parties that a debt collector may contact when trying to collect a debt are:
- the consumer;
- the consumer's attorney;
- a consumer reporting agency (if permitted by local law);
- the creditor;
- the creditor's attorney; and
- the debt collector's attorney.
IMPORTANT EXCEPTION: a debt collector who is unable to locate a consumer may ask a third party for the consumer's home address, telephone number, and place of employment (location information). The debt collector must give his or her name and must state that he or she is confirming or correcting information about the consumer's location. Unless specifically asked, the debt collector may not name the collection firm or agency or reveal that the consumer owes any debt.
Validation of Debts
A debt collector must provide the consumer with certain basic information. If that information was not in the initial communication and if the consumer has not paid the debt five days after the initial communication, all of the following information must be sent to the consumer in written form:
- the amount of the debt;
- the name of the creditor to whom the debt is owed;
- notice that the consumer has 30 days to dispute the debt before it is assumed to be valid;
- notice that upon such written dispute, the debt collector will send the consumer a verification of the debt or a copy of any judgment; and
- if the original creditor is different from the current creditor, notice that if the consumer makes a written request for the name and address of the original creditor within the thirty-day period, the debt collector will provide that information.
If, within the thirty-day period, the consumer disputes in writing any portion of the debt or requests the name and address of the original creditor, the collector must stop all collection efforts until he or she mails the consumer a copy of a judgment or verification of the debt, or the name and address of the original creditor, as applicable.
Harassing or Abusive Practices
A debt collector, in collecting a debt, may not harass, oppress, or abuse any person. Specifically, a debt collector may not:
- use or threaten to use violence or other criminal means to harm the physical person, reputation, or property of any person;
- use obscene, profane, or other language that abuses the hearer or reader;
- publish a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3) of the FDCPA;
- advertise a debt for sale to coerce payment;
- annoy, abuse, or harass persons by repeatedly calling their telephone number or allowing their
telephone to ring continually; or
- make telephone calls without properly identifying himself or herself, except as allowed to obtain location information.
False or Misleading Representations
A debt collector, in collecting a debt, may not use any false, deceptive, or misleading representation. Specifically, a debt collector may not:
- falsely represent or imply that he or she is vouched for, bonded by, or affiliated with the United States or any state, including the use of any badge, uniform, or similar identification;
- falsely represent the character, amount, or legal status of the debt, or of any services rendered, or compensation he or she may receive for collecting the debt;
- falsely represent or imply that he or she is an attorney or that communications are from an attorney;
- threaten to take any action that is not legal or intended;
- falsely represent or imply that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person, unless such action is lawful and intended by the debt collector or creditor;
- falsely represent or imply that the sale, referral, or other transfer of the debt will cause the consumer to lose a claim or a defense to payment, or become subject to any practice prohibited by the FDCPA;
- falsely represent or imply that the consumer committed a crime or other conduct to disgrace the consumer;
- communicate, or threaten to communicate, false credit information or information that should be known to be false, including not identifying disputed debts as such;
- use or distribute written communications made to look like or falsely represent documents authorized, issued, or approved by any court, official, or agency of the United States or any state if the appearance or wording would give a false impression of the document's source, authorization, or approval;
- use any false representation or deceptive means to collect or attempt to collect a debt or to obtain information about a consumer;
- fail to disclose in the initial written communication with the consumer, and the initial oral communication if it precedes the initial written communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. In addition, the debt collector must disclose in subsequent communications that the communication is from a debt collector (these disclosures do not apply to a formal pleading made in connection with a legal action);
- falsely represent or imply that accounts have been sold to innocent purchasers for value;
- falsely represent or imply that documents are legal process;
- use any name other than the true name of the debt collector's business, company, or organization;
- falsely represent or imply that documents are not legal-process forms or do not require action by the consumer; or
- falsely represent or imply that the debt collector operates or is employed by a consumer reporting agency.
A debt collector may not use unfair or unconscionable means to collect or attempt to collect a debt. Specifically, a debt collector may not
- collect any interest, fee, charge, or expense incidental to the principal obligation unless it was authorized by the original debt agreement or is otherwise permitted by law;
- accept a check or other instrument postdated by more than five days, unless he or she notifies the consumer, in writing, of any intention to deposit the check or instrument; the notice must be made no more than ten nor less than three business days before the date of deposit;
- solicit a postdated check or other postdated payment instrument to use as a threat or to institute criminal prosecution;
- deposit or threaten to deposit a postdated check or other postdated payment instrument before the date on the check or instrument;
- cause communication charges, such as charges for collect telephone calls and telegrams, to be made to any person by concealing the true purpose of the communication;
- take or threaten to repossess or disable property when the creditor has no enforceable right to the property or does not intend to do so, or if, under law, the property may not be taken, repossessed, or disabled; or
- use a postcard to contact a consumer about a debt.
A debt collector who fails to comply with any provision of the FDCPA is liable for:
- any actual damages sustained as a result of that failure;
- - punitive damages as allowed by the court: in an individual action, up to $1,000. In a class action, up to $1,000 for each named plaintiff and an award to be divided among all members of the class of an amount up to $500,000 or 1 percent of the debt collector's net worth, whichever is less;
- - costs and a reasonable attorney's fee in any such action.
In determining punitive damages, the court must consider the nature, frequency, and persistency of the violations and the extent to which they were intentional. In a class action, the court must also consider the resources of the debt collector and the number of persons adversely affected.
A debt collector is not liable for a violation if a preponderance of the evidence shows that the violation was not intentional and was the result of a bona fide error that arose despite procedures reasonably designed to avoid any such error. The collector is also not liable if he or she, in good faith, relied on an advisory opinion of the Federal Trade Commission, even if the ruling is later amended, rescinded, or determined to be invalid for any reason.
Statute of Limitations: 1 Year From Date of Violation
Action against debt collectors for violations of the FDCPA may be brought in any appropriate U.S. district court or other court of competent jurisdiction. The consumer has one year from the date on which the violation occurred to start such an action.