How to Protect Yourself From Debt Collectors

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HOW TO PROTECT YOURSELF FROM DEBT COLLECTORS BY HARVEY REPHEN– ATTORNEY AT LAW

FDCPA
The FDCPA stands for The Fair Debt Collection Practices Act. It was created to protect consumers from abusive and harassing debt collectors (not original creditors). The FDCPA allows up to $1000 as a penalty from any debt collection agency violating your rights and also makes the violating debt collector pay your attorney fees. This essentially giving you free legal representation. The FDCPA enumerates various types of violations. The most common will be reviewed here with the Federal Court's legal interpretation where necessary.

But first and foremost it is necessary to give a short overview of proving a violation. There is no specific requirement under the FDCPA for proving a violation, however in order to avoid a drawn out and protracted legal proceeding, and to ensure a quick settlement of cases PHYSICAL EVIDENCE is required. IMPORTANT: THERE IS A ONE YEAR STATUTE OF LIMITATIONS ON FDCPA VIOLATIONS – MEANING THAT THE VIOLATION MUST HAVE OCCURRED WITHIN THE PAST YEAR!!!! Physical Evidence means: 1) A recording left on the answering machine; 2) A recorded conversation with the debt collector. Check your state to see if it a one or two party taped recording state. If it is two party then you must state: "By the way I am recording this." Most of the time the debt collectors will not believe you; 3) Phone records proving that the debt collector called; 4) A letter or written communication from the debt collector to the consumer; 5) A written communication from you to the debt collector – such as a cease and desist letter – and proof that it was sent certified mail; 6) An affidavit from a family member, co-worker, or individual that they were called by the debt collector; 7) A photo of your incoming calls on your phone;

The Most Common Violations 1) Non Disclosure. The FDCPA requires debt collectors to state in every communication that: a) The name of their company;

b) The name of the debt collector c) That they are debt collectors; d) And if it is a first communication, that they are attempting to collect a debt and any information obtained will be used for that purpose. The Courts hold however, if you are calling the debt collector, or have a letter from them, know their name and that they are a debt collector, there is no nondisclosure violation if they do not give the disclosures when calling in. Further some courts hold that if you called in and asked to be called back and also know you are calling a debt collector – then when they call back and leave a message without the disclosures – there is no violation – but this holds only for some jurisdictions. However, if you are calling in off of an item listed on your credit report and have never spoken or received a letter from the debt collector then the required disclosures must be given. Failure to include any of the above constitute a violation of the FDCPA.

2) Third Party Disclosure. When a debt collection agency leaves the above warnings on the phone and the message does not violate the nondisclosure requirement, there can still be a violation if someone other than the consumer or the spouse hears the message. a) Needs to be a third party; b) According to court interpretation the greeting on the phone should inform the debt collector that someone other than the consumer or the spouse can hear the message, ex: Hi you have reached Joe, John, Mary and Jane, please leave a message; or ex: Hi you have reached the Rodriguez family, we are not here right now, please leave a message; c) Further, answering machines that play out loud as the message is received strengthen the proof of the violation. JUST TO REEMPHASIZE – NON DISCLOSURE AND THIRD PARTY DISCLOSURE ARE THE MOST COMMON VIOLATIONS AND THE EASIEST TO PROVE.

3)

Communicating with third parties. A debt collector is limited to communicating with a third party (other than the spouse or attorney). a) Location information. When a debt collector is trying to confirm a location of the consumer they can only state that they are confirming or denying location information. If you ask them who they are they must tell you the name of their company. b) If the debt collector asks a third party to give the consumer a message then there will be either a third party violation or a non disclosure violation!!!

c) If the debt collector knows you are represented by an attorney and has their name and contact information, then any further communication with the consumer is a violation.

4)

Cease and desist letter, and inconvenient time and place communications. a) If the consumer send a written cease and desist letter, the debt collector must cease communication and attempting to collect that debt according to the instructions in the letter. b) If the consumer informs the debt collector by phone or letter that it is an inconvenient time and place to contact him. Then the debt collector must cease doing so. Ex: Stop calling to work or cell phone. Harassment or Abuse. 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. This is very general and broad category and great for the consumer. Some important examples are: a) The use of profane language or threats in general; b) Calling relatives or friends after they have been informed that the consumer does not live there, or told to stop calling.

5)

6)

False and misleading representations. A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of a debt. NO LIES AT ALL!!!!! Some examples are: a) The false representation of the amount, character, or legal status of a debt; b) The false representation that an individual is an attorney or that any communication is from an attorney ; c) The threat to take action that cannot legal be taken or that is not intended to be taken; d) The false representation or implication that the consumer committed any crime or conduct in order to disgrace the consumer; e) COMMUNICATING OR THREATING TO COMMUNBICATE TO ANY PERSON CREDIT INFORMATION WHICH IS KNOWN OR WHICH SHOULD BE KNOW TO BE FALSE, INCLUDING HE FAILURE TO COMMUNICATE THAT A DISPUTED DEBT IS DISPUTED. f) Stating that the file is being reviewed for legal action, or in legal status when there is no such review. The best way to deal with this is ask the debt collector

to explain what they mean by that and the process; ex: who is reviewing it, how long will it take, when are you going to file this? ADVISE ON DISPUTING DEBT: Dispute all debts in general. The failure to update a credit report to reflect it is disputed is a common violation. The best way is to state it over the phone while recording it. You can also dispute all items from debt collectors that are on your credit report directly with the credit reporting agency. The credit reporting agency must then send a validation request to the debt collector – which essentially a notification of dispute. The debt collector often fails to update the credit report when receiving a validation notice like this. Then two months later after a reasonable period has passed to update the report – there is a violation! g) The use of any false or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

7)

Unfair practices. A debt collector may not use unfair or unconscionable means to collect or attempt to collect a debt. Some example are:

a) The collection of any amount unless such amount is expressly authorized by the agreement creating the debt or permitted by law. (Excessive Fees). b) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such as collect calls or calls to cell phones where the minutes are paid for by the consumer. c) The use of improper service concerning a law suit against the consumer. For instance, the consumer was never served at all and a false affidavit of service was filed. Further if a default judgment was obtained because of it. Go to the clerk of the court, and fill in the papers to get the default judgment vacated and to have the case tried on the merits. That is often enough to back down a debt collector using this tactic and then after deal with the FDCPA violation. (If there is a state action a federal action will have to wait until the state action is settled). 8) Validation of the debt. The debt collector must issue a notice within five days of the initial communication or within the initial communication itself informing the consumer that they have 30 days to dispute the validity of the debt. This is most commonly violated when the debt collector calls up before sending a letter and does not give the required "validation notice" and then does not send a letter within five days. This is most easily proved by asking the debt collector when they first sent the initial letter – if at all. 9) ITEM ON THE CREDIT REPORT. The courts have held that when a debt collection agency puts an item on a credit report that it is considered collection activity!!! This means that if the debt collection agency does not send the 30 day validation notice within five days of credit reporting then it is a violation.

QUESTIONS TO ASK THE DEBT COLLECTOR IN GENERAL A) B) C) D) E) F) G) H) I) J) Why is the debt so much? What are the fees and can you explain it? What is the interest? Was this debt charged off? Who owns the debt now? What's going to happen if I do not pay this? Is this on my credit report ? Definitely state: I do not believe this debt is mine or the amount is right if you do not recognize the debt or the amount – this constitutes a dispute. How old is this debt? When is it from? Who is the original creditor?

STATUTORY COMPENSATION If your rights have been violated the FDCPA provides up a $1000 penalty from the debt collection agency. The FDCPA also provides compensation for actual damages. So if you have actual been harmed physical, emotional, or financially you can be compensated for that harm. The FDCPA also makes the violating debt collection company pay for your attorney's fees as part of your compensation. That should make the use of an FDCPA attorney a free service for the consumer.

ABOUT ATTORNEY REPHEN Attorney M. Harvey Rephen has been practicing consumer law since 1995 and specializes in protecting consumers from violating debt collectors under the FDCPA in
all 50 States. Attorney Rephen can be reached for more information at 212.796.0930 or [email protected].

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