Suing a Debt Collector (FDCPA)

YOU DO NOT HAVE TO PAY ANY ATTORNEY’S FEES OR COSTS FOR THIS SERVICE. 

Are you a victim of unlawful debt collection practices? 
Have you been threatened by debt collectors to take legal action against you?
Is the phone ringing with harassing calls from debt collectors?

If your answer is yes to any or all of these, you should fight back!

According to the Federal Trade Commission (FTC), one of the top complaints filed every year are collection agency harassment complaints against 3rd party collection agencies. BuildMyCredit.com was established by a team of professional aimed at protecting consumers who are victims of debt collector harassments and unruly reporting practices.

 

Our team of consumer professionals have help our attorney affiliate litigate thousands of consumer law cases and have extensive experience settling cases on behalf of the Fair Debt Collection Practices Act (FDCPA). The Fair Debt Collection Practices Act (FDCPA) was passed to provide consumers protection against collection agencies and credit card companies (such as Discover, Bank of America, Chase, and many others). This “ACT” spells out the actions that third party debt collectors and debt buyers are prohibited from doing. 

 

The FDCPA considers the following as violations of the FDCPA by debt collectors:

  1. Non Disclosure. The FDCPA requires debt collectors to state in every communication that:

    1. The name of their company;
    2. The name of the debt collector
    3. That they are debt collectors;
    4. And if it is a first communication, that they are attempting to collect a debt and any information obtained will be used for that purpose.


    Failure to include any of the above constitute a violation of the FDCPA.

  2. Third Party Disclosure. When a debt collection agency leaves the above warnings on the phone and the message does not violate the nondisclosure requirement, there can still be a violation if someone other than the consumer or the spouse hears the message.

    1. Needs to be a third party;
    2. According to court interpretation the greeting on the phone should inform the debt collector that someone other than the consumer or the spouse can hear the message, ex: Hi you have reached Joe, John, Mary and Jane, please leave a message; or ex: Hi you have reached the Rodriguez family, we are not here right now, please leave a message;
    3. Further, answering machines that play out loud as the message is received strengthen the proof of the violation.

  3. Communicating with third parties.  A debt collector is limited to communicating with a third party (other than the spouse or attorney).

    1. Location information. When a debt collector is trying to confirm a location of the consumer they can only state that they are confirming or denying location information. If you ask them who they are they must tell you the name of their company.
    2. If the debt collector asks a third party to give the consumer a message then there will be either a third party violation or a non disclosure violation!!!
    3. If the debt collector knows you are represented by an attorney and has their name and contact information, then any further communication with the consumer is a violation.

  4. Cease and desist letter, and inconvenient time and place communications. 

    1. If the consumer send a written cease and desist letter, the debt collector must cease communication and attempting to collect that debt according to the instructions in the letter.
    2. If the consumer informs the debt collector by phone or letter that it is an inconvenient time and place to contact him. Then the debt collector must cease doing so.

    Ex:  Stop calling to work or cell phone.

  5. Harassment or Abuse. 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.

    This is very general and broad category and great for the consumer. Some important examples are:

    1. The use of profane language or threats in general;
    2. Calling relatives or friends after they have been informed that the consumer does not live there, or told to stop calling.

  6. False and misleading representations.   A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of a debt. NO LIES AT ALL!!!!!

    Some examples are:

    1. The false representation of the amount, character, or legal status of a debt;
    2. The false representation that an individual is an attorney or that any communication is from an attorney ;
    3. The threat to take action that cannot legal be taken or that is not intended to be taken;
    4. The false representation or implication that the consumer committed any crime or conduct in order to disgrace the consumer;
    5. COMMUNICATING OR THREATING TO COMMUNBICATE TO ANY PERSON CREDIT INFORMATION WHICH IS KNOWN OR WHICH SHOULD BE KNOW TO BE FALSE, INCLUDING HE FAILURE TO COMMUNICATE THAT A DISPUTED DEBT IS DISPUTED. 
    6. Stating that the file is being reviewed for legal action, or in legal status when there is no such review. The best way to deal with this is ask the debt collector to explain what they mean by that and the process; ex: who is reviewing it, how long will it take, when are you going to file this?

      ADVISE ON DISPUTING DEBT: Dispute all debts in general. The failure to update a credit report to reflect it is disputed is a common violation. The best way is to state it over the phone while recording it. You can also dispute all items from debt collectors that are on your credit report directly with the credit reporting agency. The credit reporting agency must then send a validation request to the debt collector – which essentially a notification of dispute. The debt collector often fails to update the credit report when receiving a validation notice like this. Then two months later after a reasonable period has passed to update the report – there is a violation!
    7. The use of any false or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

  7. Unfair practices.A debt collector may not use unfair or unconscionable means to collect or attempt to collect a debt.

    Some example are:

    1. The collection of any amount unless such amount is expressly authorized by    the agreement creating the debt or permitted by law.  (Excessive Fees).
    2. Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such as collect calls or calls to cell phones where the minutes are paid for by the consumer.
    3. The use of improper service concerning a law suit against the consumer. For instance, the consumer was never served at all and a false affidavit of service was filed. Further if a default judgment was obtained because of it. Go to the clerk of the court, and fill in the papers to get the default judgment vacated and to have the case tried on the merits. That is often enough to back down a debt collector using this tactic and then after deal with the FDCPA violation. (If there is a state action a federal action will have to wait until the state action is settled).    

  8. Validation of the debt.  The debt collector must issue a notice within five days of the initial communication or within the initial communication itself informing the consumer that they have 30 days to dispute the validity of the debt. This is most commonly violated when the debt collector calls up before sending a letter and does not give the required "validation notice" and then does not send a letter within five days. This is most easily proved by asking the debt collector when they first sent the initial letter – if at all.

  9. ITEM ON THE CREDIT REPORT. The courts have held that when a debt collection agency puts an item on a credit report that it is considered collection activity!!! This means that if the debt collection agency does not send the 30 day validation notice within five days of credit reporting then it is a violation.

     Under the FDCPA, you have a right to

    1. Decline to take a call from a debt collector
    2. Hang up on a debt collector
    3. Instruct a debt collector not to call
    4. Send a letter to a debt collector not to call
    5. Arrange a convenient time to call you
    6. Not allow debt collector to call you at odd times
    7. Ask debt collector to validate the debt in writing
    8. Inform debt collector not to call at work place
    9. Send a cease and desist letter to debt collectors to stop further communication
    10. Engage an attorney for further communication and legal action
    11. Record the calls from debt collectors (if it is allowed in the state you reside in)
    12. If a debt collector has violated the FDCPA, you may submit the details in the form given below and allow us to pursue legal action for you.