The Fair Debt Collection Practices Act (“FDCPA”) is a broad federal law that controls how third-party debt collectors can go about collecting money owed to the original creditor. The FDCPA provides protections regarding who a debt collector can contact, how they do so and when. In doing so, the FDCPA prohibits harassment, deceptive practices and more.
So, what do you do if a collection agency is violating your rights under the FDCPA or any other law? Read on to learn when you should consider suing a collection agency.
Collection Agencies and the FDCPA
It is important to understand how these companies operate and the law(s) that govern their actions. A collection agency is a third-party debt collector that is pursuing your money on behalf of the original creditor. Typically, collection agencies have a financial incentive to take whatever action they need to collect on a debt.
That’s why it’s not hard to imagine the tactics some collection agencies may take to get you to pay them. That is where the FDCPA and other laws play a vital role. The FDCPA regulates how third-party debt collectors can collect on various consumer debts (e.g., credit cards, student loans, medical bills, etc.).
It’s important to note that the FDCPA does not provide any protections for business debts. It also does not cover child support obligations or unpaid taxes. However, when it comes to consumer debt, the FDCPA can
- Prevent harassment
- Stop aggressive and abusive communication
- Prohibit deceptive debt collection practices
- Provide a remedy if a debt collector takes any illegal action
The FDCPA does not prevent debt collectors from seeking payment, but it does make sure they do so fairly and ethically.
Legal Behavior of Debt Collectors
Before we get to the reasons you can sue a collection agency, it is important to know what they can and should do. While you may want to assume most actions taken by a debt collector are illegal, there are certain things they have the authority to do.
Legal behavior of a debt collector includes the following:
- Inform you that they are contacting you to collect a debt
- Identify themselves as a collection agency
- Send you documented validation of your debt
- Indicate the original creditor they are representing
- Letting you know of your right to dispute the debt within 30 days
This type of communication is standard behavior for a debt collector and is permissible under the FDCPA.
Reasons You Can Sue a Collection Agency
There are several different reasons under the FDCPA when you can sue a collection agency. You can also sue a collection agency under the Telephone Consumer Protection Act (TCPA). One basis for suing a collection agency is if they use certain aggressive language such as
- Profanity. You can sue a debt collector if they use profane or obscene language in a harmful manner while attempting to collect a debt. Debt collectors must engage in communications with a consumer respectfully and courteously.
- Threats of Violence. This type of behavior is unacceptable and explicitly prohibited by the FDCPA. In addition, these threats may also result in violations of certain criminal statutes.
- Other Types of Harassing Language. Any harassing language may be a violation of the FDCPA.
Improper Communications under the FDCPA
You can also sue a collection agency based on certain improper communications. Collection agencies may not contact you
- At Certain Explicit Times. The FDCPA specifically instructs debt collectors that, without your permission, they cannot call you before 8:00 AM or after 9:00 PM. If a debt collector does, this is a straightforward violation of the FDCPA.
- Other Known Inconvenient Times. A debt collector cannot contact you at other times they know or should know are inconvenient for you. A debt collector can violate this requirement if, for instance, you tell them to not call you between 2:00 – 4:00 PM and they ignore that request.
- When an Attorney Represents You. Once a debt collector knows that an attorney represents you regarding a debt, they are to end all direct communication with you.
- With Robocalls. The TCPA does not allow for any company, including collection agencies, to use either automated or pre-recorded voice calls.
- Using a Predictive (Automatic) Phone Dialer. The TCPA also protects you if you are receiving calls from a company using an automatic phone dialing system.
Communication with a Third Party Under the FDCPA
Another reason you can sue is in situations when a collection agency calls someone they should not. This may be the case if they
- Communicate Your Debt to a Third Party. A collection agency cannot let anyone else know that you owe them money (e.g. family members, employer, etc.). They can call to ask about how to contact you but they cannot let them know that it has anything to do with a debt. The only exception is if the person is your spouse.
- Calling the Wrong Person. If you are being harassed by a collection agency for a debt you do not owe, you may have a claim. If the collection agency has the wrong person and you notify them of that fact, it is illegal for them to continue to contact you.
- Publicize Your Debt. A debt collector may not publish information about your debt in any public record.
Deceptive Collection Practices Under the FDCPA
Lastly, you can sue a collection agency if they are engaging in any type of deceptive collection practices. Some examples include
- Misrepresenting a Debt. It is a violation of the FDCPA for a debt collector to claim you must pay a debt that is not your legal obligation. For instance, they cannot pressure you to pay a relative or other person’s debt if you were not a co-signer. It can also be a violation if they misrepresent the amount of the debt to coerce a settlement.
- False Threats. A debt collector cannot make false threats to coerce you into paying a debt. For example, they cannot apply pressure by saying they are going to repossess your property in X days if you do not pay the debt.
- Improper Payments. A debt collector cannot apply a payment in a manner inconsistent with your instructions or obtain a payment for a disputed debt.
- Any Other Type of False Representation. This may take the form of not disclosing who they are, your rights or the purpose of their call. Debt collectors must be honest with who they are, the original creditor and why they are contacting you.
Proving Your Case
Remember, you have the initial burden of proof to show the court that the debt collector violated the FDCPA. Regardless of your basis for bringing a claim, having evidence will be essential if you want to be successful.
If you believe your rights are being violated, make sure you document every interaction with the debt collector. This may include:
- Saving voicemails
- Making copies of letters sent to or from the debt collector
- Taking notes of communications with the debt collector
- Gathering information from third parties that the debt collector contacted
Are There Any Other Options for Dealing with a Collection Agency?
While a lawsuit may be your best option there is also alternative action you can take. Here are some other options when dealing with a debt collector who is not complying with the requirements of the FDCPA:
- Report the Debt Collector to the Federal Trade Commission (FTC). You can make a complaint with the FTC, the primary federal agency responsible for enforcing the FDCPA.
- Submit a Complaint with the Consumer Financial Protection Bureau (CFPB). The CFPB assists with resolving consumer complaints. If you submit a complaint they can work with the creditor to resolve the issue.
- Negotiate a Settlement of Your Debt. It may be advantageous to use a violation to negotiate with the debt collector toward a favorable debt settlement. If you can prove a clear violation, both parties may be better off simply resolving the debt.
- Contact Your State Attorney. In addition to the FDCPA, there are state laws. You can contact your state attorney to determine if you have any other options to take against a collection agency.
Filing a lawsuit may still be your best option. However, it’s important to consider all options before taking the next step.
Conclusion
When a collection agency is violating your rights under the FDCPA, the best option may be to bring them to court. If you have evidence of a debt collector’s violations, a lawsuit can stop their behavior and result in monetary damages as well.
If you have a case and do not know what steps to take, contact an attorney that specializes in consumer rights laws. They will be able to guide you and advocate on your behalf against unscrupulous collection agencies.
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