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Consumer Defense FAQ | Fair Debt Collection Practices Act Explained

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Article written by Attorney Kevin O'Flaherty
Updated on
June 1, 2020

What is consumer defense?

Consumer defense does not involve defective products—that’s the realm of products liability suits. Consumer defense is the area of law that protects you from debt collectors, protects the integrity of your credit report, and punishes those that use auto-dialers to call you without your consent. Three main statutes that create this area of law are the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, and the Fair Credit Reporting Act.

What is the Fair Debt Collection Practices Act?

The Fair Debt Collection Practices Act (FDCPA) is a federal statute that protects consumers from the bad behavior of debt collectors. It specifically prohibits debt collectors from engaging in abusive debt collection practices.

What does the FDCPA apply to?

The FDCPA only applies to consumer debts—business debts are not included. It also only applies to debt collectors. An original creditor is not a debt collector. If you got a credit card from Capital One, then that is your original creditor. When Capital One calls to collect on its own debt, it is not a debt collector. If Capital One sold your debt or hired a collector to call you, then those parties (not Capital One) are debt collectors. Law firms can also be considered debt collectors if their primary business is debt collection.

What does the FDCPA prohibit?

The FDCPA prohibits abusive and unfair debt collection practices. Among other things, debt collectors:

  • Can’t swear at you or use other types of abusive language;
  • Can’t threaten you with arrest or any other legal means that cannot be used;
  • Can’t collect on debts that have been discharged in bankruptcy;
  • Can’t collect on debts while you are in an active bankruptcy and protected by the automatic stay;
  • Have to abide by special rules when they collect on debts that are past the statute of limitations;
  • Can’t cause your phone to ring constantly throughout the day;
  • Can’t discuss your debt with anyone else—not even your family members;
  • Can’t send you mail where the envelope makes it obvious that it is a debt collection letter;
  • Can’t sue you in a remote jurisdiction;
  • Most importantly, they MUST identify themselves as debt collectors each time they contact you, whether that’s by mail, email, or phone.

What are my remedies under the FDCPA?

The FDCPA allows you to pursue debt collectors for their bad behavior. You are entitled to your actual damages (generally out-of-pocket damages) or statutory damages. The statutory damages can be up to $1,000 maximum. You can also recover your attorney’s fees. It is important to note that violations do not stack. If you are called and the debt collector both uses abusive language and threatens to have you arrested, the whole call only counts as one violation of the law.

What is the Fair Credit Reporting Act?

The Fair Credit Reporting Act (FCRA) was enacted to ensure that consumer credit reports are accurate. Consumers can dispute inaccurate credit reporting, requiring the credit reporting bureau to investigate and correct those inaccuracies. The three main credit reporting companies, Experian, Equifax, and TransUnion are all governed by the FCRA. Other, smaller credit reporting agencies are as well.

What are my remedies under the FCRA?

If you have attempted to submit your disputes and the credit reporting remains inaccurate, you may have a lawsuit against the credit reporting agency and possibly the creditor. An experienced Illinois consumer defense attorney can help you identify those claims.

What is the Telephone Consumer Protection Act?

The Telephone Consumer Protection Act (TCPA) was enacted to protect consumers from unwanted phone calls and faxes. While the TCPA still provides protection for unsolicited faxes, the declining use of fax machines has decreased the overall number of junk faxes. It was also enacted when most cellular phones were billed by the minute.

However, it still has relevance today. It prohibits unsolicited calls made with an automated telephone dialing system (ATDS). You can generally identify these calls because they either open with a robotic voice, or there is a distinct pause before the line connects to the caller. This is usually because the caller is dialing multiple numbers with the ATDS.

What are my remedies under the TCPA?

You can pursue violators for between $500 and $1500 PER CALL. Keeping good records is key. You’ll want to note the time, date, and phone number. If you can, take screen shots as well.

How can I get help with consumer defense issues?

You can lodge complaints with the Consumer Financial Protection Bureau. However, they are not staffed sufficiently to handle all claims. Hiring an experienced consumer defense attorney is your best bet. Given that you can recover your attorney’s fees under the FDCPA, you can feel safer bringing your own lawsuit.

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Consumer Defense FAQ | Fair Debt Collection Practices Act Explained

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