Common Violations by Debt Collectors
Debt collectors spend hundreds of hours going to seminars and workshops learning how to avoid lawsuits, but yet, they violate the Fair Debt Collection Practices Act “FDCPA” every day. When it comes to leaving voicemails, they just can’t seem to help themselves, as there is virtually no way to leave a voicemail message without violating FDCPA. It is also illegal for a debt collector to contact you at work when they know you are not permitted to receive calls at work, or speak to anyone other than you, including your family and friends. Debt collectors cannot yell, swear at you, or lie to you. They also cannot threaten you. Lastly, a debt collector cannot contact you when you are represented by an attorney. The law is on your side, know your rights.
Often the letters and correspondence that Debt Collectors send to consumers are riddled with errors. A simple mistake on a letter, could expose the collector to a lawsuit where statutory (automatic) damages could be awarded by a court up to $1,000. Often, when a consumer brings a letter into our firm, we are able to not only pursue the FDCPA claim for an error in the letter, but often are able to wipe out the debt as a condition of settlement. Frequently, we help consumers avoid bankruptcy or creditor lawsuits by pursing FDCPA violations.
Threats, Lies and Misrepresentations
We don’t see these as often as the other violations but they still occur. Debt collectors will say they are with the police or the district attorney’s office, and that they are going to criminally prosecute you if you do not pay your debt. (More often these types of phone calls are from scammers and are not from real debt collectors) Other debt collectors have left voicemails threatening lawsuits that are supposedly filed but actually were not – instead these were blatant lies. Other abusive collection agencies or collection law firms have threatened people with deportation or physical harm. Any type of illegal threat or lie violates the Fair Debt Collection Practices Act, as well as the Nevada Deceptive Trade Practices Act and Nevada law regulating collection agencies, and you could have a claim against any collector who violates the law.
Disclosures to a Third Party
Abusive debt buyers, collection agencies, and law firms often leave voicemail messages knowing there is a chance that people other than the debtor/consumer will hear the messages. Most answering machines play over a speakerphone so if the debt collector says “Mr. Consumer you need to call us back about this debt you owe right now” and a neighbor or family member hears this, then a third party disclosure has occurred. This is illegal. So if the debt collector says “This is a debt collector and this is an attempt to collect a debt” and someone else hears this – the law has been violated. Often times children or room-mates share a telephone line and voicemail (whether an answering machine or voicemail, etc) and so this is a serious and very common violation we see abusive debt collectors committing. If a collector calls a friend or other family member and tells them about your debt, that is a violation of the FDCPA.
Failure to Leave a Mini Miranda
Debt collectors know when they leave voicemails they must leave the so called “Mini-Miranda” which is basically where they say “This is a message from a debt collector attempting to collect a debt”. It prevents them from lying about the purpose of their call – it makes it clear to you that the call is a debt collection call. However, many debt collectors refuse to follow the law and make the mini-Miranda disclosure. So why would a debt collector violate the law? First, it helps with collection efforts because it creates uncertainty in the mind of the consumer as to the purpose of the call. Do you call back or not? Second, it helps to avoid making third party disclosures which we discussed above. But the problem with this second reason is it is no excuse to violate one part of the law because you don’t want to violate another part of the law. Amazingly, harassing debt collectors believe they have a constitutional right to leave voicemail messages. They don’t.
Debt collectors cannot call after 9pm or prior to 8 am in the time zone of the consumer. So if they call your cell phone, they risk contacting you outside of the time restrictions. Collectors also cannot call repeatedly or in a manner that is abusive or meant to harass the debtor. Generally, this is interpreted on a case by case basis, but multiple calls per day would most likely be interpreted as an abuse, as would a daily call over an extended period of time.
What Should Consumers Do?
- Keep a notebook by your phone, and record the number the call is received from, time and information related to any debt collection call. If you speak with anyone, ask for the person’s name & company name, employee id if they refuse to give a full name, mailing address and return phone number Do not give them your personal information, identity thieves often pose as debt collectors to get sensitive information such as date of birth, social security number, current address, etc., and you are not required to provide the debt collector with any of this information.
- Tell the debt collector not to call you and to only communicate with you in writing. Then send them a letter to the same effect.
- Save any and all voicemails, and keep copies of your detailed phone records showing the date and time of calls.
- Take a picture of your caller ID when you receive a call to prove date and time, also if it says “blocked” or “unknown” (as debt collectors often do this to “trick” you into answering) this too violates FDCPA.
- If the calls are abusive or touch on any of the points above,or if additional contact is made after you advised in writing that you only want to be contacted in writing, contact an attorney.
- Save all letters and correspondence, including the envelope the letters were sent in and have them reviewed by a consumer protection attorney.