Debt Collector, Creditor, And Telemarketer Harassment And The Laws Concerning It
The majority of Americans have had some form of consumer debt. Consumer debt consists of personal debts that are owed as a result of purchasing goods and services that are used for individual or household consumption and use. Some examples of consumer debt include, but are not limited to, credit card debt, student loans, auto loans, mortgages, and payday loans.
Due to the ease of obtaining financing matched with the high level of interest rates in the United States of America as of early 2020, consumer debt in this country is currently on the rise. If a consumer is unable to manage their debt properly due to experiencing hard times, then it can potentially cause an adverse impact on their credit score and hinder their ability to borrow in the future. When a consumer cannot make a payment on a debt by the due date, it is called a default. With credit cards, creditors might raise interest rates due to a default and/or creditors may decrease the line of credit.
Sometimes a creditor will try to collect on a debt themselves, and other times, they will hire a third-party debt collection company to assist them in trying to collect on the alleged debt. Other times, a creditor will charge off a debt, and sell it, to another creditor. There are some companies, called debt buyers, who buy and then collect on the debt themselves, or hire a third-party debt collection company to collect on the debt.
Unfair and Deceptive Acts and Practices Statutes
All consumers should be treated with respect and fairly. There are rules that third-party debt collectors and creditors both have to follow, to ensure that they are not violating a consumer’s rights during the course of collecting on a debt. Different states have their own respective laws on consumer protection, commonly referred to as Unfair and Deceptive Acts and Practices Statutes (“UDAP”).
Some UDAP statutes are stronger than others and can provide consumers with the ability to receive monetary damages from a business that violates their rights, and to have their attorney’s fees and costs paid for by the business as well. Many UDAP statutes protect consumers from any business that might violate the rights of a consumer, and therefore also provide protections to consumers against unlawful activity by debt collectors, creditors, and telemarketers. However, some UDAP statutes have specific provisions that apply to debt collectors, creditors, and telemarketers; stating what they are not allowed to do.
The Fair Debt Collection Practices Act
There are also two federal statutes that are of particular note in governing the rules on how consumer debt is allowed to be collected. These are the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), which will be discussed here first, and the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), which will be discussed here afterward. These federal statutes can provide consumers with considerable relief and damages if their rights are violated.
The Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., is a federal statute that protects the rights of consumers – those who are debtors or those who are alleged to be debtors – from debt collector harassment. If their rights are violated, consumers could be entitled to up to $1,000.00 in statutory damages under the statute, as well as any actual damages, and a debt collector could have to pay the consumer’s attorney’s fees and costs as well.
Here are some things that debt collectors cannot do to a consumer, pursuant to the FDCPA:
- Cannot demand that a consumer pays more than the consumer owes; and
- Cannot try to charge interest, a fee, or another charge in addition to the amount that a consumer owes, unless the original contract that created the debt or the law of the state that the consumer lived in at the time the debt was created allowed the charge; and
- Cannot deposit a post-dated check that a consumer gave them early; and
- Cannot make an unauthorized withdrawal on a consumer’s bank account or credit card; and
- Cannot contact a consumer by postcard; and
- Cannot talk to other people who a consumer has not authorized them to, or who are not the consumer’s spouse, about the debt; and
- Cannot sue a consumer in regard to a debt that is past the time frame in the consumer’s state for which the debt collector would be allowed to sue the consumer (that time period is commonly referred to as the statute of limitations); and
- Cannot threaten to sue a consumer in regard to a debt that is past the statute of limitations; and
- Cannot try to collect on a debt that is past the statute of limitations, without letting the consumer know that the time to sue on the debt is past the statute of limitations; and
- Cannot threaten a consumer with action when it is clear that the debt collector never intended to take said action and/or nor could they; and
- Cannot call a consumer before 8 o’clock in the morning or after 9 o’clock at night; and
- Cannot curse or insult a consumer, as a debt collector cannot use obscene language against a consumer; and
- Cannot say that the papers that they send a consumer are legal forms, if they are not legal forms; and
- Cannot make up fake consequences for a consumer not paying their debt, such as that the consumer will be arrested for not paying their debt; and
- Cannot state that a consumer’s social security benefits, supplemental security income, veterans’ benefits, and many other federal benefits will be garnished in regard to a credit card debt or a private student loan debt; and
- Cannot call a consumer at work if their employer does not allow it and the collector has already been told this; and
- Cannot call a consumer during times that they say are inconvenient for them; and
- Cannot call a consumer while the consumer is at a place that is inconvenient for the consumer to take calls at and when the consumer has already warned the debt collector not to call the consumer while the consumer would be there; and
- Cannot call a consumer after the consumer notifies the debt collector in writing to cease calling the consumer; and
- Cannot pretend to be a lawyer or government agency; and
- Cannot contact a consumer directly once the debt collector has reason to know that the consumer has hired legal representation; and
- Cannot keep calling a consumer if the consumer does not owe any debt anymore and the consumer has already told the debt collector this; and
- Cannot keep calling a consumer if the consumer has already told the debt collector that the consumer is the wrong person that the debt collector is trying to collect from; and
- Cannot harass unrelated third parties in regard to a consumer’s debt (those people could have claims against the debt collector via the FDCPA as well if the debt collector is violating their rights); and
- Cannot fail to send a consumer written notice of the alleged debt (which should include the official name of the current creditor, the monetary amount that the consumer allegedly owes, and information that notifies the consumer that he or she has the right to dispute the alleged debt that is being collected on, and so forth); and
- Cannot lie to a consumer about anything or attempt to mislead a consumer about anything; and many more.
Should a debt collector violate a consumer’s rights under the FDCPA, they can contact a law firm that is licensed in the consumer’s respective state, who can sue the debt collector for the aforementioned $1,000.00 in statutory damages, actual damages, and the consumer’s attorney’s fees and costs to be paid by the debt collector. Some examples of actual damages that a consumer could pursue as a result of a debt collector violating the FDCPA include, but are not limited to, emotional distress damages for pain and suffering, damages for invasion of privacy, monetary funds for compensation in regard to charges incurred due to lost cell phone minutes, compensation for loss of employment due to the debt collector’s harassment, and so on.
Unless a judge or jury declares that the amount of alleged debt claimed to be owed and/or the alleged debt itself is not accurate, the alleged debt obligation itself does not go away if a debt collector is found by a court to violate a consumer’s rights under the FDCPA. However, as mentioned, a consumer can collect damages as a result of the violation of their rights.
As mentioned, a consumer’s home state might have its own respective state laws to protect a consumer from debt collection harassment, in addition to the FDCPA, and those Unfair and Deceptive Acts and Practices (UDAP) statutes, which often provide the main protection for consumers in their state against unscrupulous businesses, might also allow a consumer to get some additional damages from a debt collector for any harassment that the consumer might be receiving as a result of the debt collector’s illegal conduct towards the consumer. Some UDAP statutes also provide protections to consumers similar to those that are available to them under the FDCPA from the illegal actions of creditors.
The Telephone Consumer Protection Act
Creditors such as e-commerce companies, banks, and credit card companies, and other lenders, as well as third party debt collection companies, telemarketers, and other businesses often will call, text or fax consumers through the usage of a computerized automatic telephone dialing machine that can leave a pre-recorded message for those consumers, a machine commonly referred to as an auto-dialer. These machines have the capability for predictive dialing. A lot of people refer to this practice of a business calling a consumer through the usage of a computerized autodialer to deliver a prerecorded message as robo-calling or robo-dialing. This practice has also happened many times in the past without the business having had prior express consent from the consumer for the business to be able to call the consumer, which can harass, annoy, and frustrate the consumer. For people who suffer from anxiety, stress, and other health-related problems, disorders, and diseases, these unwanted calls can sometimes be overwhelming.
Companies should not contact an individual with an auto-dialer without first having obtained the individual’s prior express consent. There is a federal statute that sets forth what federal law is in regard to this. It was passed by the U.S. Congress in 1991 and was then signed into law that same year by President George H.W. Bush, and it is known as the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA“). The TCPA protects the rights of people who are receiving unwanted calls, artificial or prerecorded voice messages, texts, or faxes, by companies using automatic telephone dialing machines.
If a person tells a company – whether it is orally or in writing – to stop calling, texting, or faxing the person, and the company keeps doing so, then that the company could owe the person $500.00 to $1500 per every call, text, artificial or prerecorded voice message, or fax made or sent after the person told them to stop calling, texting, or faxing.
If a business is calling or texting a person while looking for the wrong person, then the person may not even have to tell the business to stop calling for the contact from the business to be deemed illegal. The business could owe the person $500 to $1500 per call or text starting from the second communication that the company made to the person. Businesses have a responsibility to ensure that they are calling or texting the right party, and that they have the express consent of the person being contacted to receive the method of contact. A business would owe $500-1500 per unauthorized fax communication that the business made to a person.
If a court believes that the business acted in a willful and knowing manner, it could entitle a person to up to three times the normal amount of damages per unwanted call, text, or fax; so, $1,500.00 per unwanted call, text, or fax.
If a person does not owe a business any money, and if they are the wrong person that the business is looking for, then even if they are not on the federal Do Not Call List, if the business is calling the person without their express consent, or after the person has told it not to, it can owe the person up to $500.00 to $1,500.00 per unwanted call. Often, law firms will file class action lawsuits on behalf of people against companies for similar violations of the law.
No one should have their rights under the Fair Debt Collection Practices Act (FDCPA), their state’s respective Unfair and Deceptive Acts and Practices (UDAP) statutes, or the Telephone Consumer Protection Act (TCPA) violated.
A state consumer protection agency in the state that a consumer resides in, the office of the Attorney General in a consumer’s respective state, or an attorney who is licensed to practice law in the state that a consumer resides in, as well as the Consumer Financial Protection Bureau and also the Federal Trade Commission, can all help consumers in determining if their rights have been violated under these statutes, and if they are entitled to monetary damages and other forms of relief.