VACAVILLE AND SACRAMENTO OFFICES
VACAVILLE AND SACRAMENTO OFFICES
When a creditor acts outside the law in the pursuit of the collection of their debt, you have rights. The law that governs the relationship between you and your creditors is called the Fair Debt Collection Practices Act.
A summary of the law broken down into eight sections follows. But if you have a particular question about whether certain conduct violates the Fair Debt Collection Practices Act, contact my office.
1. The PURPOSE of the LAW
It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. [US Code Title 15, Section 1692(e)]
2. Common definitions of the terms used in this LAW
(2) The term ''communication'' means the conveying of
information regarding a debt directly or indirectly to any person
through any medium.
(3) The term ''consumer'' means any natural person obligated or
allegedly obligated to pay any debt.
(4) The term ''creditor'' means any person who offers or
extends credit creating a debt or to whom a debt is owed, but
such term does not include any person to the extent that he
receives an assignment or transfer of a debt in default solely
for the purpose of facilitating collection of such debt for
(5) The term ''debt'' means any obligation or alleged
obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for
personal, family, or household purposes, whether or not such
obligation has been reduced to judgment.
(6) The term ''debt collector'' means any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due
another. Notwithstanding the exclusion provided by clause (F) of
the last sentence of this paragraph, the term includes any
creditor who, in the process of collecting his own debts, uses
any name other than his own which would indicate that a third
person is collecting or attempting to collect such debts. For
the purpose of section 1692f(6) of this title, such term also
includes any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the enforcement of security interests. The term does
not include -
(A) any officer or employee of a creditor while, in the name
of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another
person, both of whom are related by common ownership or
affiliated by corporate control, if the person acting as a debt
collector does so only for persons to whom it is so related or
affiliated and if the principal business of such person is not
the collection of debts;
(C) any officer or employee of the United States or any State
to the extent that collecting or attempting to collect any debt
is in the performance of his official duties;
(D) any person while serving or attempting to serve legal
process on any other person in connection with the judicial
enforcement of any debt;
(E) any nonprofit organization which, at the request of
consumers, performs bona fide consumer credit counseling and
assists consumers in the liquidation of their debts by
receiving payments from such consumers and distributing such
amounts to creditors; and
(F) any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the extent
such activity (i) is incidental to a bona fide fiduciary
obligation or a bona fide escrow arrangement; (ii) concerns a
debt which was originated by such person; (iii) concerns a debt
which was not in default at the time it was obtained by such
person; or (iv) concerns a debt obtained by such person as a
secured party in a commercial credit transaction involving the
creditor. [US Code Title 15, Section 1692(a)]
3. When a creditor calls someone other then you to find out where you are?
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall -
(1) identify himself, state that he is confirming or correcting
location information concerning the consumer, and, only if
expressly requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless
requested to do so by such person or unless the debt collector
reasonably believes that the earlier response of such person is
erroneous or incomplete and that such person now has correct or
complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the
contents of any communication effected by the mails or telegram
that indicates that the debt collector is in the debt collection
business or that the communication relates to the collection of a
(6) after the debt collector knows the consumer is represented
by an attorney with regard to the subject debt and has knowledge
of, or can readily ascertain, such attorney's name and address,
not communicate with any person other than that attorney, unless
the attorney fails to respond within a reasonable period of time
to communication from the debt collector. [US Code Title 15, Section 1692(b)]
4. When the creditor communicates with YOU or someone else about your debt!!
(a) Communication with the consumer generally
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt -
(1) at any unusual time or place or a time or place known or
which should be known to be inconvenient to the consumer. In the
absence of knowledge of circumstances to the contrary, a debt
collector shall assume that the convenient time for communicating
with a consumer is after 8 o'clock antemeridian and before 9
o'clock postmeridian, local time at the consumer's location;
(2) if the debt collector knows the consumer is represented by
an attorney with respect to such debt and has knowledge of, or
can readily ascertain, such attorney's name and address, unless
the attorney fails to respond within a reasonable period of time
to a communication from the debt collector or unless the attorney
consents to direct communication with the consumer; or
(3) at the consumer's place of employment if the debt collector
knows or has reason to know that the consumer's employer
prohibits the consumer from receiving such communication.
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
(c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except -
(1) to advise the consumer that the debt collector's further
efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor
may invoke specified remedies which are ordinarily invoked by
such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt
collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(d) ''Consumer'' defined
For the purpose of this section, the term ''consumer'' includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator. [US Code Title 15, Section 1692(c)]
5. What is harassment by a creditor? These things are considered harassment.
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. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal
means to harm the physical person, reputation, or property of any
(2) The use of obscene or profane language or language the
natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse
to pay debts, except to a consumer reporting agency or to persons
meeting the requirements of section 1681a(f) or 1681b(3)  of this title.
(4) The advertisement for sale of any debt to coerce payment of
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to
annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the
placement of telephone calls without meaningful disclosure of the
caller's identity. [US Code Title 15, Section 1692(d)]
6. Can a creditor lie about your debts?
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The false representation or implication that the debt
collector is vouched for, bonded by, or affiliated with the
United States or any State, including the use of any badge,
uniform, or facsimile thereof.
(2) The false representation of -
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be
lawfully received by any debt collector for the collection of a
(3) The false representation or implication that any individual
is an attorney or that any communication is from an attorney.
(4) The representation or implication 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 the debt
collector or creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken
or that is not intended to be taken.
(6) The false representation or implication that a sale,
referral, or other transfer of any interest in a debt shall cause
the consumer to -
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this
(7) The false representation or implication that the consumer
committed any crime or other conduct in order to disgrace the
(8) Communicating or threatening to communicate to any person
credit information which is known or which should be known to be
false, including the failure to communicate that a disputed debt
(9) The use or distribution of any written communication which
simulates or is falsely represented to be a document authorized,
issued, or approved by any court, official, or agency of the
United States or any State, or which creates a false impression
as to its source, authorization, or approval.
(10) The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer.
(11) The failure to disclose in the initial written
communication with the consumer and, in addition, if the initial
communication with the consumer is oral, in that initial oral
communication, that the debt collector is attempting to collect a
debt and that any information obtained will be used for that
purpose, and the failure to disclose in subsequent communications
that the communication is from a debt collector, except that this
paragraph shall not apply to a formal pleading made in connection
with a legal action.
(12) The false representation or implication that accounts have
been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are
(14) The use of any business, company, or organization name
other than the true name of the debt collector's business,
company, or organization.
(15) The false representation or implication that documents are
not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt
collector operates or is employed by a consumer reporting agency
as defined by section 1681a(f) of this title. [US Code Title 15, Section 1692(e)]
7. What is considered "unfair" practices when it comes to debt collection?
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless
such amount is expressly authorized by the agreement creating the
debt or permitted by law.
(2) The acceptance by a debt collector from any person of a
check or other payment instrument postdated by more than five
days unless such person is notified in writing of the debt
collector's intent to deposit such check or instrument not more
than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check
or other postdated payment instrument for the purpose of
threatening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or
other postdated payment instrument prior to the date on such
check or instrument.
(5) Causing charges to be made to any person for communications
by concealment of the true purpose of the communication. Such
charges include, but are not limited to, collect telephone calls
and telegram fees.
(6) Taking or threatening to take any non judicial action to
effect dispossession or disablement of property if -
(A) there is no present right to possession of the property
claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the
(C) the property is exempt by law from such dispossession or
(7) Communicating with a consumer regarding a debt by post
(8) Using any language or symbol, other than the debt
collector's address, on any envelope when communicating with a
consumer by use of the mails or by telegram, except that a debt
collector may use his business name if such name does not
indicate that he is in the debt collection business. [US Code Title 15, Section 1692(f)]
8. YOU CAN SUE THEM IF THEY BREAK THE LAW!!!
a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of -
(1) any actual damage sustained by such person as a result of
(A) in the case of any action by an individual, such
additional damages as the court may allow, but not exceeding
(B) in the case of a class action, (i) such amount for each
named plaintiff as could be recovered under subparagraph (A), and
(ii) such amount as the court may allow for all other class
members, without regard to a minimum individual recovery, not to
exceed the lesser of $500,000 or 1 per centum of the net worth of
the debt collector; and
(3) in the case of any successful action to enforce the
foregoing liability, the costs of the action, together with a
reasonable attorney's fee as determined by the court. On a
finding by the court that an action under this section was
brought in bad faith and for the purpose of harassment, the court
may award to the defendant attorney's fees reasonable in relation
to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors -
(1) in any individual action under subsection (a)(2)(A) of this
section, the frequency and persistence of noncompliance by the
debt collector, the nature of such noncompliance, and the extent
to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this
section, the frequency and persistence of noncompliance by the
debt collector, the nature of such noncompliance, the resources
of the debt collector, the number of persons adversely affected,
and the extent to which the debt collector's noncompliance was
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. [US Code Title 15, Section 1692(k)]
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