Debt collectors can be rather aggressive in approaching consumers, who often do not realize they have legal rights. The collections process typically involves many phone calls. A creditor can literally call hundreds of times per day and engage in other unlawful activities. They may threaten the debtor and their family members or attempt to collect debts that are not allowed. The Commonwealth of Massachusetts prohibits unfair debt collection practices and the Attorney General has laid out a series of Debt Collection Regulations.
If a debt collector engages in any type of unlawful activity, a debt harassment lawyer can help. Chances are the creditor will not stop contacting you if an attorney isn’t available. They will keep on going because most consumers are not aware of the legal rights they are entitled to. For example, if you want to stop harassing phone calls, an attorney becomes the debt collector’s point of contact. This is a more effective way to stop the unfair practices that are stressing you out. First, it is essential to realize you are being subjected to unfair, and even illegal, behavior on the part of the collector or agency.
Examples of Debt Harassment
According to the Attorney General of Massachusetts, harassing communications by creditors and collection agencies include a number of actions, such as:
- Calling your home phone more than twice a week for each debt.
- Calling your work phone more than twice in a month, for each debt.
- Not revealing the name of who is calling, or not identifying the creditor. The call may be made on a creditor’s/agency’s behalf, but even if the caller uses an alternative name, the organization should know who they are.
- Engaging in the use of profane language, or using obscenities.
- Threatening legal action yet does not act on it or does not intend to.
- Stating that the materials they send you are legal documents, if they are not.
- Depositing a post-dated check that was received earlier than the due date.
- Informing relatives, friends, employers, or others of your debt without consent.
- Passing on expenses to you such as long distance, express mail, and other charges.
- Sending materials to you in the mail, such as postcards, to reveal/imply you are in debt.
- Visiting your home more than once in a 30-day period, unless you consent to an additional visit.
- Coming to your home, or calling, at odd hours outside the 8:00 a.m. to 9:00 p.m. time frame.
Consumer Protection Laws Against Debt Harassment
In addition to federal regulations against unfair debt collection practices, Massachusetts enforces its own laws to protect consumer rights. Section 49 of the General Laws prohibits creditors, or their attorneys or assignees, from collecting debts related to personal/family/household purposes “in an unfair, deceptive, or unreasonable manner”. It also forbids creditors from communicating with someone other than who is liable for the debt unless they receive written permission. They can, however, notify you that the said debt may be reported to a credit bureau. They may consult with an agent or attorney on the matter as well.
On the other hand, if you have notified the creditor you are being represented by an attorney, their direct communication with you is a violation of the law. Such is also the case if their communications simulate the judicial process in any way. Threatening violence or any courses of action that are not business-like are clear violations of the law too.
Section 24 states that only licensed collection agencies or debt collectors are allowed to engage with consumers. By law, the following persons are prohibited from doing so:
- An employee or officer of a creditor collecting debts on the organization’s behalf.
- An individual who acts as they are authorized to collect debt, particularly if they do business together.
- Someone who engages in legal action against another person.
- A government or state officer or employee.
- A non-profit organization that provides credit counseling.
- An attorney on behalf of their client.
- An agent/contractor designated to collect a bill owed by a tenant, public utilities customer, or cable/telecommunications services consumer, unless the fees are collected specifically for the landlord or corporation.
Consumer Protections Expanded in 2011
The Office of Consumer Affairs & Business Regulation revealed that consumer protections regarding debt collection were expanded. As of April 2011, Massachusetts law increased the money and personal property a creditor can’t pursue via the courts. That means they cannot seize certain funds and property to satisfy outstanding debts. Under certain conditions, this includes automobiles, household furniture, or a computer and television. Bank account funds up to $2,500 are exempt too, and creditors cannot seize the personal items of a handicapped individual or someone over 60 years of age related to an exemption of up to $15,000. Exemptions regarding wages are in place as well.
Protections now in place are intended to aid residents who are financially distressed. They protect against unlawful activities by creditors, and are designed to help individuals maintain life’s basic necessities.
Federal Trade Commission Law
Telephone Consumer Protection Act (TCPA): If collectors repeatedly contact you with robocalls via cell phone, you can be entitled up to $1,500 per call. The Federal Communications Commission (FCC) enacted the TCPA in 1991 to restrict the use of automatic telephone dialing systems, or the use of artificial/prerecorded messages. In 2003, it coordinated with the Federal Trade Commission to establish a nationwide Do-Not-Call registry. A revision in 2012 added requirements that telemarketers obtain written consent from a consumer before initiating robocalls and to provide a means for the consumer to opt-out of communications.
In 2007, the FCC adopted a Declaratory Ruling to address unwanted calls by creditors using auto-dialing methods and prerecorded messages to wireless phone numbers. While it does not apply to parties calling to recover payments for goods and services, the ruling requires that creditors keep records of a consumer having provided prior consent to receive automated calls. It also holds the creditor responsible if a third-party collector is designated to act on their behalf.
Fair Debt Collections Practices Act (FDCPA): Amended in 2010, the FDCPA establishes and details the limitations on debt collector behavior. A debt collector lawyer will pursue your case if a collector is in violation of any of these, because the fair collections act allows you to sue for monetary and injunctive relief if you have been harassed. It lists unfair practices and includes a process for fairly validating debts to a consumer. In addition, the allowable legal actions a debt collector can take are listed. For example, if an action to enforce interest in real property is taken, it must take place in a judicial district or similar entity in the said property’s location.
The FDCPA also establishes civil liability on debt collectors. It includes:
- Statutory Damages: If a collector violates the provisions of the law, they may be liable for up to $1,000 in damages for harassing you. The amount awarded also depends on the nature of the actions, including their frequency, duration, and content.
- Actual Damages: You may be entitled to out-of-pocket compensation if you can prove emotional distress or stress-related health issues resulted from the debt collectors actions. Compensation for anxiety, humiliation, shock, angina, and pain and suffering is possible.
- Attorney Fees: A successful outcome to a lawsuit could entitle you to recovery of attorneys’ fees under the FDCPA.
A state version of the FDCPA is available, so Massachusetts residents are protected against unfair debt collection practices. The difference is the federal law applies solely to debt collectors. Creditors and hired debt collectors are covered under the state version of the law. They are required to allow an attorney, or yourself, to examine any documents related to the debt being collected. Account statements, credit card applications, and other records must be made available, or else the action will be deemed unfair or deceptive under the Attorney General’s Debt Collection Regulations.
Massachusetts also adds the following provisions to the federal law:
- The state version exempts more property from seizure. It protects automobiles, a certain amount of livestock, cemetery plots, and as much as $500 worth of books.
- An anti-discrimination law prevents mortgage lenders from discriminating a person based on their nationality, gender, sexual orientation, race, age, handicaps, and more. The law applies to any entity involved in a real estate transaction.
- A retailer cannot charge a customer more if they use a credit card for their purchase, although cash discounts are permitted.
In addition, the state has put a statute of limitations on actions related to debt collection. It is six years, regardless of the type of debt (including credit cards), or as part of an oral agreement or written contract. This means a lender cannot take action if it is six years since the debt is due or since the individual last sent a payment.
The Massachusetts Consumer Debt Collection Act (MCDCA) also covers many other things. It includes strict regulation of debt collectors, who must be licensed and make their books and records available if the Commissioner of Banks asks for them. The Commissioner has the right to revoke their license if any regulations are violated, in which they could be subjected to civil penalties and criminal liability.
Also, the act puts the same limitations on telephone communications and in-person contact the federal law does. A creditor is forbidden from visiting you in the workplace or confronting you in a public location except for a courthouse or their office. A creditor’s attorney’s office is allowable as well. It just must be somewhere nobody else will overhear the conversation.
The MCDCA is strictly enforced. As a debtor, you can sue the creditor, but allow them 30 days to make a settlement offer. You can take them to trial if the offer for a settlement is refused, and seek treble damages and attorney’s fees. The recovery, however, will be limited to the original offer if the case prevails, and if the court determines it is a reasonable amount.
How to Protect Yourself
Suing a debt collector is feasible if they have violated the law. To ensure you are being treated fairly, it helps to know what proper etiquette is. If not sure, you can request the party in question verify the debt by providing written documentation. Records of the date, time, and name of the party contacting you should be maintained. Write down everything that you ask, and the responses of that party as well. If a debt collector or attorney contacts you, due your due diligence and look into their licensing or bar status. The more information you have, the easier it will be to verify their legitimacy and make a plan for repaying the debt.
Attend court proceedings to ensure you do not default, and make sure you are not required to pay funds from exempt assets. Per the Trial Court’s Uniform Rules on Small Claims, amended in 2009 by the Supreme Judicial Court, creditors must be able to verify your address if you owe, prior to filing a claim. Also, when a small claims case is being held, creditors must have the amount owned, amount/date of last payment, and the last four digits of the individual’s account number. When a small claims judgment is brought to court, creditors are required to provide written notification of when payments are made in full.
Proper and fair behavior on the part of a creditor includes:
- Identifying the amount owed and to whom initially or within five days.
- State their intention is to collect a debt, and will seek information for that purpose.
- State the name of the creditor, individual collector, or debt collection company.
- Reveal the original creditor’s name and address if you ask for it in writing, and within 30 days.
- If this information is provided, the creditor must be in direct contact with your attorney.
- Within 30 days, they must state, in writing, your right to not get workplace collection phone calls.
How a Debt Harassment Lawyer Can Help
If a debt collector is not behaving properly, suing a collection agency for harassment is possible with the help of an attorney. If they act in ways prohibited by the law, as mentioned earlier, or demand more than you owe, make unauthorized withdrawals from your credit card or bank account, or attempt to sue you when the time on your state’s statute of limitations has passed, a legal advisor is the best option.
A debt harassment lawyer will start by sending a letter to the party in question, to cease communications with you. Other steps they take include a request of validation, and for the collector to provide an accurate calculation of the debt. They may also send a letter to contest it. Your lawyer has other options if the debt collector does not stop harassing phone calls or other actions. They can review your phone call logs, texts, and other records, including voicemails. The phone records can even be subpoenaed. An attorney can take things further by sending out private investigators to learn about who the collector is, and review potential cases involving the party in question.
Oftentimes, people are contacted by collection agencies regarding old debt. They may not be aware of it, and perhaps not even legally obligated to pay. An agent can purchase the debt from the creditor, often for less than its original value, and attempt to obtain the full value of it from you. A debt collector lawyer can help you fight them by:
- Helping you deny responsibility for the debt in question. People are often contacted by collectors and are not sure if it is something they are liable for.
- Recognizing collector’s strategies such as reporting an old debt as something new, making credit card offers and unknowingly adding the debt to a new card, and other tactics.
- Finding proof the debt is the legal responsibility of the client, including a credit agreement that you signed.
- Keeping track of your credit report to ensure the collector’s actions don not have any negative impacts.
- Threatening legal action if the collector does not stop.
- Verifying the statute of limitations on collecting debt via the courts in your state, and providing a written statement to the collector that this case does not meet the requirements of state law.
In Massachusetts, you have rights in addition to national law if a collector engages in harassing behavior, or you do not believe you are responsible for the debt at all. There are some additional provisions and the state has issued its own statute of limitations. State residents, therefore, are protected even more against unfair practices, so they have additional reasons to consult a debt collector lawyer and consider suing a collection agency for harassment.