When it comes to dealing with harassment from debt collectors, many times debtors look towards doing it the easiest way possible. If court can be avoided, if at all possible, that is often the best route to go.
However, is it even possible to settle an FDCPA claim without going to court, or is court inevitable? We have asked attorney, Alaina Sullivan, and here is what she had to say:
What is the Fair Debt Collections Practices Act?
The first thing that needs to be understood is what the law entails under the act. The Fair Debt Collections Practices Act (or FDCPA) is a law within a larger law, the Consumer Credit Protection Act. The FDCPA was created to provide guidelines and provide fairness in the collection of consumer debts.
The FDCPA details what must be done to be able to collect on a debt and what must be provided to the debtor to ensure that this debt is valid first. Under the FDCPA, debtors can sue collectors who do any of the following while pursuing collections on a consumer debt:
- Threaten or harass the debtor;
- Call the debtor during “odd” hours, such as very early in the morning or late at night;
- Make false statements about the debts involved;
- Threaten to sue the debtor when they have no intent to file suit;
- Contacting friends and family members of the debtors;
- Contact other third parties who would have information about the debtor and reveal confidential information about the debt to these individuals;
- Threaten criminal charges or jail time;
- Continue to make collection efforts even though the debtor advised them to stop;
- Make untruthful or deceptive statements in printed collection documents;
- Report fake information about the debtor to a credit bureau;
Notifying the Collector to Stop Contact
Under the FDCPA, the first step to getting the collector to stop contacting the debtor can be done by the debtor, himself, and can be done without seeking legal proceedings. The debtor must first put a notification in writing, in the form of a letter, sent to the debtor and the Federal Trade Commission.
This notification tells the collector that he or she has violated the FDCPA, describing what activities have led to this violation, and informing the collector that he or she must cease contact with the debtor.
Once the collection agency gets the notification, they can inform the debtor they have received the letter and can let the debtor know how they wish to proceed. Otherwise, any further contact needs to stop. If the communication continues, it is at this point that the debtor needs to pursue a legal action.
Filing the Law Suit
The next step in an FDCPA claim would be to file a suit in court. Many times, simply filing the legal action will prompt the other party to cooperate. It will be enough to show that the debtor is serious about his or her claims.
The collection agency may not want to spend time and money to defend itself in a legal action and may be more willing to settle out of court to avoid the next step.
Of course, the debtor is always taking the gamble that the collection agency would rather go to court than pay so be prepared for that option if that is the case.
Filing an Administrative Complaint
If the debtor is more concerned with stopping the collection agency from pursuing these types of actions against another individual in the same situation, certain administrative complaints can be filed as well.
The first of these is with the Consumer Financial Protection Bureau (CFPB), who can investigate the debtor’s complaint and any others that may exist against this particular collector. Sometimes the debtor may even be entitled to partial refund of fees paid to the collector who violated the law.
A complaint can also be filed with the state’s attorney general or even with the Better Business Bureau, both agencies who can take action against the debt collector for violation of the FDCPA without having to resort to court action.
Contact an Attorney Today
If you find yourself dealing with debt collectors, and it has gotten to the point where the debt collector has now violated the FDCPA, it may be time for you to talk with an attorney about your situation.
An attorney can listen to the facts of the case and can best advise you on how to proceed. Contact an attorney experienced in fair debt collections proceedings to schedule a consultation today.