The Fair Debt Collection Practices Act is loaded with instructions on how collectors must act, and the dos and don’ts of how to collect a debt. While many collection agencies do take steps to assure that they do not violate the law, a very large amount willingly violate the law. There are also parts of the FDCPA that collectors seem to either not understand or just ignore the proper application. Here are some of the most popular violations of the FDCPA that we see in our clients’ claims:
1. Threats of Wage Garnishment: With the exception of a federally funded student loan, in order to garnish one’s wages, a creditor or debt collector must have a judgment against the consumer. That is, they must file a lawsuit, serve the lawsuit upon the consumer, bring the matter to court and win the case. Unfortunately this last step is often too easy as consumers tend to not properly respond to a summons.
Regardless, a garnishment is not always inevitable just because a lawsuit is filed. Still, many collectors like to tell consumers that if they do not pay the debt, they will garnish wages.
In our opinion, this threat can violate the FDCPA in most instances. First, if the collector does not
own the debt, then they can’t sue anybody for it. So to say they would be garnishing wages, when they can’t even sue, would be misleading. Second, even if they did own the debt, to simply say they would garnish wages is misleading when they have not taken any of the steps necessary to have any right to garnish wages such as file a lawsuit. A debt collector making this comment about garnishing wages should be careful to qualify it by mentioning that they can file a lawsuit, and if they win, intend on garnishing wages. But to make it sound so immediate and inevitable would be misleading.
2. Failing to Disclose the Communication is Coming from a Debt Collector: When a debt collector communicates with a debtor, no matter how or when, it must disclose that the call is coming from a debt collector. This section of the FDCPA was likely brought upon to avoid any tricks in the communication – so that the consumer receiving the call knows the purpose of the call and is not misled by the caller. So often
collectors leave messages for consumers to call a number back about “an important business matter” or some other emergency. The collector will not advise that the call is coming from a debt collector. In addition, when they call and the consumer answers, the collector must make that disclosure. It must be
on every letter, e-mail, or fax. The failure to do so violates the Fair Debt Collection Practices Act.
3. Communicating the Debt to Third Parties: Often times, collectors call third parties looking for the
consumer. They may call parents, siblings, old roommates or ex-spouses. It is not always done with a sinister intent. Often times, the debt was created when the consumer lived at a different address. Thus, a collector with very little information about the person they were looking for, may call these other places. When a debt collector calls a third party, literally several sections of the FDCPA come into play. However, for this article, we are focusing on the one violation that appears most popular – leaving a message on a
voicemail or answering machine.
Unless the collector is calling a personal cell phone, there is a danger that once the message is left, another person will hear. Common household answering machines can be played by any member of the family. A family often shares a voicemail account. People have roommates. As stated in #2 above,
when the collector communicates with the consumer, the collector must advise that the call is coming from a debt collector and he or she is attempting to collect a debt. Therefore, if a collector leaves a message that complies with the law, the collector is disclosing the debt, and if anyone besides that particular debtor hears that message, the FDCPA has been violated.
While there are sure fire ways to prevent themselves from making this error, debt collectors seem to continue to commit this violation.
Debt collectors have run over consumers and committed acts violating the FDCPA regardless of their knowledge and training over these laws. The above are just a few of those we see as the most popular violates lately. Are you being contacted by a debt collector? SmithMarco, P.C., has over 30 years of
combined experience practicing law protecting the rights of consumers around the country. Contact
us for a free case review.