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If a Debt Collector is violating your rights or harassing you, you are entitled to protections and rights under Federal Law, and for those living in California, California State Law protections. If the Debt Collectors are violating these rights you may be able to use it as leverage against your debt, or take the Collector to court.
What If I Receive A Notice From A Debt Collector?
Respond as quickly as possible, even if you do not owe a debt, the collector may try to collect the debt and potentially report you to credit reporting companies. The earlier you respond the less likely it is to have negative results. Failure to respond may even result in a law suit brought onto you; in which, if you fail to appear you may have a negative judgement placed on you. If the debt is yours, the earlier you respond the more likely the collector will be willing to cooperate with you and work on a plan that is beneficial for both parties.
Do I Have Any Rights Or Protections From Debt Collectors?
If your debt collector is a third party collector, meaning that it is a person who regularly collects debts and is doing so on behalf of another person or institution, then they are subject to the rules and protections of the Fair Debt Collections Practices Act (FDCPA). Additionally, California has the Rosenthal Fair Debt Collection Practices Act, or Rosenthal Act for short, which extends protections to any Debt Collector who regularly collects debt for themselves or another; on debts that come from consumer transactions in which payment is deferred or delayed.
What Is The Fair Debt Collections Practice Act?
The FDCPA became effective in 1978, and since has been the federal act meant to protect consumers from abusive and unfair debt collectors. It is important to note that the FDCPA applies only to debt incurred primarily for personal, family, and household purposes, therefore any business or corporate debts are not under the scope of the FDCPA. As stated earlier, the debt collectors covered are only collectors who regularly collect debt and are doing so on behalf of someone else.
Rules of Communication
Under the FDCPA, a debt collector may only contact the borrower, their spouse, parent (if borrower is a minor) guardian, executor, or administrator in regards to collection of the debt; communications with any other person about collecting said debt is a violation of the FDCPA.
There are also rules about when and where communication is allowed. A debt collector may not communicate with the consumer before 8:00 a.m. or after 9:00 p.m. unless the consumer or a court give the collector permission. A collector may also generally not contact the consumer at their place of employment.
If the consumer retains an attorney, and their information is reasonably attainable, then all communication must be done through the attorney; this is unless the attorney does not respond or grants permission to allow communication with the consumer.
The consumer also has the right to cease all further communications, which can be done by requesting in writing a cease of communications, if this right is invoked then the collector must end communications unless they are advising; the debt collection is being stopped or that a specific remedy will be invoked. These mailed notices are official once the debt collector receives them.
Validation of Debts
There is some information that the Debt Collector is required to provide to the consumer. This includes basic information about the debt such as the amount, the creditor, and notice of up 30 days to dispute the debt. If within those 30 days the consumer disputes the debt, then the collector must provide the consumer with the judgement or any form of verification of said debt, and any relevant information requested regarding the creditor.
What is The Debt Collector Not Allowed to Do?
The Debt Collector is not allowed to harass or abuse the consumer. This includes, but is not limited to; threatening violence/crime towards the consumer, use of profane language meant to abuse the consumer, publishing to the public consumers who allegedly owe debts, harassing or reaching out via phone without a purpose.
The Debt Collector may not use any deceptive or misleading tricks or lies to scare or manipulate a debtor into paying. This includes falsely representing oneself as working for the any state or as an attorney, as well falsifying documents in regards to the money owed. As well as implication of any sort of jail time or any false threatening to the consumer. There are many ways for a Debt Collector to violate the consumer's rights in order to collect the debt.
There are also some unfair practices a Debt Collector may try to use to attempt to collect the debt, such as; collecting fees on the principal obligation not authorized by the original agreement or law, depositing postdated checks without notice or authorization, threaten to disable property that the creditor has no right to disable, among other things.
What Can I Do If A Debt Collector Violates My FDCPA Protections?
Any Debt Collector who violates the provisions of the FDCPA can be held liable for any actual damages, meaning direct and actual damages, sustained because of the failure to follow the FDCPA guidelines. Additionally, the court allows up to $1,000 in punitive damages to an individual action. Of course, reasonable costs and attorney's fees can be claimed.
What Is The Rosenthal Act For?
The most notable benefit of the Rosenthal Act is that it extends the protections offered under the FDCPA to debt collectors who are collecting a debt for which they are the creditor. The Rosenthal Act and the FDCPA overlap almost entirely, as the Rosenthal Act is intended to patch the loopholes that the FDCPA left open. If in a particular case a violation is covered by both laws, then it is possible to bring suits in both court systems.
Another difference between the two laws is that under the Rosenthal Act, there is no responsibility of validating the debts.
Along with the overlapping protections, the Rosenthal Act has very similar punishment methods as the FDCPA. The Debt Collector is liable for actual damages sustained as a result of the violations, as well as up to $1,000 penalty. The Rosenthal Act also allows room for coverage of reasonable costs and legal fees.
A Debt Collector can however shake the civil liability if within 15 days of realizing a violation it can be remedied with respect to the debtor. Differing from the FDCPA, only individual suits are permitted, meaning no class action suits.
Chief Legal Architect & Co-Founder @ People Clerk. Camila is an attorney, consumer advocate, and certified mediator. Her passion is breaking down complicated legal processes so that people without an attorney can get justice.