In this article, we explain the Fair Debt Collection Practices Act (“the FDCPA”). We answer the following questions:
The Fair Debt Collection Practices Act is a federal law that sets forth limitations on the actions that creditors and debt collection agencies may take to collect debt. It is intended to prevent unfair, deceptive and abusive debt collection practices.
The FDCPA applies to collection agencies, debt buyers, lawyers and other entities and individuals that regularly collect third party debts as part of their business. The FDCPA does not apply to in-house debt collection or business debt.
For more on this, check out: When Does the FDCPA Apply?
Under the FDCPA, debt collectors are not allowed to take the following actions:
Debt collectors are oly permitted to contact debtors between 8 am and 9 pm and may not contact debtors at their place of employment after being requested not to.
For more on this, check out our article: What are the Rules for Debt Collectors Under the FDCPA?
A simple phone call won’t cut it; to get a debt collector to leave you alone, The Fair Debt Collection Practices Act states that you must send a formal letter by mail, asking the lender to stop contacting you. Be sure to make yourself a copy before sending the letter, and you’ll definitely want to send it by certified mail and pay for a return receipt in order to have proof that the collector received your request. The Consumer Financial Protection Bureau has sample letters that can help you structure your request. Once the debt collector receives the letter, the company can only contact you to confirm the elimination of contact or to inform you of a specific action, like the filing of a lawsuit, which will be taken. If an attorney represents you, the collector must only communicate with your attorney. It’s important to understand that even if you ask the debt collector to cease contact, you still owe the debt. The collector can still seek payment from you through a lawsuit, which can lead to wage garnishment.
In wage garnishment, creditors can legally require your employer to give a percentage of your earnings toward your debts. Garnishment often happens when a creditor sues an individual for nonpayment of a debt and wins, followed by a court order for your employer to divert a portion of your paycheck to the creditor or person to whom you owe money. Child support, student loans, and as we’re discussing in this article, consumer debts are common sources of wage garnishment. Earnings will be garnished until the debt is completely paid off or otherwise resolved. When it comes to medical bills, personal loans, and credit card debt, either 25% of your weekly disposable income or the amount by which your weekly income exceeds 30 times the federal minimum wage, whichever is less, can be taken from an individual’s paycheck. For example, if your weekly disposable income is $290 or more, 25% of that amount is taken ($72.50) until your debt is fully paid off.
Yes. First, the collector has to sue you to get a court order, called a garnishment. The wage garnishment legally requires your employer to give the collector a portion of your paycheck to pay off your debts. A collector can also seek a court order to take money from your bank account. Don’t ignore a lawsuit with a debt collector, because you could lose the opportunity to fight a court order.
Generally, a debt collector cannot discuss your debt with anyone but you, your spouse, and your attorney. A debt collector is allowed to contact your friends and family, but only to find out your address, home phone number, and where you work. Debt collectors are also limited to contacting the relatives of the debtor only once. They cannot communicate with third parties, such as your employer, neighbors, and family members about your debt.
Yes. If you did not dispute the debt, and you have not made any payments toward your debt, a debt collector can sue you for the money. If you are sued over a debt, be sure to get an attorney and appear in court on the scheduled court date. If you do not appear in court, the debt collection agency automatically has a legal recourse to continue trying to collect the debt from you. If you think the debt collection agency has violated the FDCPA, respond with your own lawsuit by the date specified in your court papers.
Yes. If a debt collector is trying to collect multiple debts from you, he or she must apply any payments you make to the debt of your choosing. They cannot apply a payment to a debt you claim isn’t yours.
How to Report a Fair Debt Collection Violation
If you believe a debt collector has violated the FDCPA, report the event to your state attorney general’s office, the Federal Trade Commission, and the Consumer Financial Protection Bureau.
You reserve the right to sue a debt collector in the Illinois state or federal court within one year from the date the law was allegedly violated. If you decide to sue the debt collector, keep records of all your correspondence, including phone calls, voicemails, text messages, letters, and emails. For example, proving a claim of a violation over the phone may be difficult. Keep an accurate phone log to record the date, time, and context of every call you receive from a debt collector.
If you can prove that you suffered damages, like losing wages or incurring medical bills as a result of illegal collection practices, a judge can order the debt collector to cover those damages.
If you cannot prove any actual damages, a judge can still order the debt collector to pay you up to $1,000. A group of people can sue as a class and potentially recover as much as $500,000, or 1% of the collector’s net worth, whichever is lower.
If you aren’t sure if the debt is yours or not, you can ask the debt collector for verification of the debt through a validation notice. Collectors are required by the FDCPA to send you a written debt validation notice with information about the debt they’re trying to collect within 5 days of contacting you. The debt validation letter should include:
Once you receive the debt validation notice, you only have 30 days to contact the debt collector and give reasons why you don’t owe the debt or how the amount is incorrect. If the debt is yours and you’ve already paid it, be sure to include a copy of the cancelled check or your bank statement. If you do not agree with the amount of debt, the verification process should help clear up any confusion. If the debt is not yours due to identity theft, include a copy of the police report regarding identify theft. If you fail to respond within 30 days to dispute the debt, it will be assumed to be valid.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: