WHAT IS CREDITOR HARRASSMENT?

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

another.

(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

debt; and

(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

person.

(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) [1] of this title.

(4) The advertisement for sale of any debt to coerce payment of

the debt.

(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

debt.

(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

subchapter.

(7) The false representation or implication that the consumer

committed any crime or other conduct in order to disgrace the

consumer.

(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

is disputed.

(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

legal process.

(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

property; or

(C) the property is exempt by law from such dispossession or

disablement.

(7) Communicating with a consumer regarding a debt by post

card.

(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

such failure;

(2)

(A) in the case of any action by an individual, such

additional damages as the court may allow, but not exceeding

$1,000; or

(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

intentional.

(c) Intent

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.

(d) Jurisdiction

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)]