Laws the Leg-Breakers Don’t Want You to Know About

By Linsey Knerl on 10 August 2007 (Updated 18 August 2007) 18 comments

Gone are the days when debt collectors only hassled the lazy, financially inept, or the completely downtrodden and hopelessly unlucky. More and more consumers are being contacted by debt collectors as part of an attempt to be paid for past due accounts, either for their own debt, debt inherited as a condition of a death in the family, or as a horrible consequence to an identity theft. Whether or not you actually owe the money, the rules are the same. Debt collectors acting as a third-party interest in past-due accounts are bound by the laws of the FDCPA. Learning what they can (and more importantly: CAN’T do) is vital to protecting your rights and preventing undue stress.

The Fair Debt Collection Practices Act , often referred to as the "FDCPA", was passed by Congress in response to abusive conduct by collection agencies. Actions that are considered illegal under the Act include:

  • Contacting a third-party not involved with the debt. This means that if your boyfriend’s name is on the debt, they can call him. They cannot, however, contact Aunt Edna. They also cannot call you at work if it has been made known to them that it is a violation of a work policy. Once you tell them that they cannot call you at work anymore, they need to comply.
  • Threatening to sue you, throw you in jail, garnish your wages, kill your dog, etc. They can inform you of an actual impending intention to refer your case to an attorney or to report your debt to a credit agency, but not with the intention of getting you to pay. Additionally, they cannot be a potty-mouth by using racial slurs, insults, or profanity to make their point.
  • Letting your debt be known to others. All communications from the agency need to be private. Envelopes containing letters should not have any blatant wording of it being from a collection entity. When calling to speak to you at work, they should not inform your boss or anyone else answering the phone that the call is regarding a debt.
  • Calling outside of normal hours. Unless you have given explicit permission for 2 a.m phone calls, agencies may not call someone before 8 a.m. and after 9 p.m. regarding debt.
  • Pretending to be someone they aren’t. Letters from the agency need to be on agency or creditor letterhead. It is against the law for a notice to come on “attorney” or “court” letterhead, unless it is an actual legal document from them directly.

Other illegal tactics include asking for you to provide checking account numbers or post-dated checks with the intention of prosecuting you if they come back “insufficient” from your bank. They also may not charge interest or collection fees not stated in your original purchase contract or that may be prohibited by state law.

The FDCPA also requires that agencies send a written notice within 5 days of their first contact with you. This notice must include:

  • How much money you reportedly owe;
  • The name of the creditor to whom the debt is owed;
  • That unless you, within thirty days after receipt of the notice, dispute the validity of the debt or any portion thereof, the debt will be assumed valid by the debt collector;
  • That if you dispute the debt in full or in part within that thirty day period, the debt collector will obtain verification of the debt and mail it to the consumer (please note that this does not prohibit the agency from continuing with normal proceedings during the 30-day period); and
  • That upon your written request within the thirty day period, the debt collector will provide you with the name and address of the original creditor, if different from the current creditor.

A “Mini-Miranda warning” must be included in the notice. This is a statement letting you know that the notice is from a debt collector any information obtained may be used to collect the debt. Every notice or letter from the agency from this point on must also contain the warning.

While there are many reputable, law-abiding collection agencies out there, it is best to make yourself aware of the proper recourse should you encounter a stinker. If you experience any problems with an agency violating the laws of the FDCPA, please contact your state Attorney General’s office. If you are dealing with an out-of-state agency, you may also call the Federal Trade Commission at 1-877-382-4357 (877-FTC-HELP). Being educated is the key to being protected. Know the law, and you can keep an old debt from ruining your life!

5
Average: 5 (2 votes)
Your rating: None
ShareThis

comments

18 discussions

Add New Comment

CAPTCHA
This test helps prevent automated spam submissions.
Guest's picture

Thank you. Now perhaps I can sound intelligent when dealing with the bill collectors who repeatedly call for the guy who had my number before me.

Guest's picture
Guest

I've had debts sold to various collection agencies, and the further down the food chain the more vicious the become. I've been threatened with the police thing before, been called a loser and other name. The worst thing though was that a company held my phone hostage for about 10 minutes.

The agency called and I spoke with them, at the time I was unemployed and I told them plainly "I do not know" and hung up. Well I went to pick up the phone to call a family member about the situation and they were still were there, they wouldn't hang up. I hung up the phone again, made my call on my cellphone & picked up the land line again they still were there. At that point I told them that they were harrassing me. I don't know how they did it.

It is awful and embarrassing enough to be in debt, it is a state no one wants to be in, and they definitely add fuel to the fire. I became more avoidant of my debts because I didn't want to even pick up the phone anymore, and didn't.

The rest is out of context, but anyway thank you for your post.

Guest's picture
Guest

If you were spoken to in this manner, the collector clearly broke the law. They cannot use any defaming remarks toward you, use profanity, threaten you physically, threaten to have you arrested, or threaten to evict you from your home if you don't pay. Additionally, the Fair Debt Collection Practices Act allows a debtor to make the collection agency cease all communication if the debtor informs them, in writing, that they wish no further contact. While this doesn't cancel the debt, it does allow you some breathing room and, if they still call and harass you, there's another strike against them. Knowledge is power. He who does not know and invoke his rights is the same as he who has no rights.

Guest's picture

"....debt inherited as a condition of a death in the family..."

Ahem!!! Debt is not inherited by family members. Maybe in the middle ages, but not in the U.S.

But I imagine that there are debt collectors who would like to make you believe it.

Guest's picture
Barbara

Linsey, your post is spot on. How did you find out all this? I've unfortunately had to deal with creditors in the past (many, MANY thanks to an ex-boyfriend who put stuff in my name) and a couple of them got really nasty with me. I was at a loss when they did so because I knew I wasn't in the wrong, but the situations got complicated, etc. Anyways, thanks so much for great information!

Linsey Knerl's picture

While most people probably have grounds for disputing the "inherited debt", here in Nebraska (where the family farm is still the most common occupation) it most definitely is a reality.  Granted, that with the debt comes the land and assets, but usually the ends don't justify the means. 

And with aging grandparents naming children as executors of their estates, it may not technically be "your" debt, but you may be responsible to administer payment.  Debt collectors don't often care who pays, how they pay, or with who's money.  They can be equally ferocious.....

 

And to answers Barbara's question, before my current life as a WAHM to 4 babies, I was a project manager for a subrogation and overpayment collection firm.  It was very upstanding, and as part of our employment with the agency, we were required to take week-long courses on the FDCPA.  Debt collection can be an honorable occupation if done lawfully and with respect. 

 

Thanks for all the great feedback! 

Guest's picture
ThePete

Hey, I also wanted to point out that in every state of the union (I believe) there is a statute of limitations on debt. SuzeOrman.com lists the lengths for each state at her website here: http://urltea.com/1jxa

Basically, this means that if the collection agency or credit card company doesn't sue you within the amount of time for the state you're in they can't legally sue you. In other words, say you lose your job and can't afford to pay your monthly payment. The moment that they cash that last check is when the statute of limitations begins. In my state, California, it's four years. I paid nothing to anyone and incurred no new debt since the late 1990s. In 2005 I got served but didn't know what I was doing. Don't do what I did and fail to file an opposition once papers have been served.

I was ignorant and trusting that the justice system would adhere to the "innocent until proven guilty" principle, which it didn't. When someone sues you, you MUST reply in a court of law or else the judge in the case will assume that the claim is true and rule against you. It's ridiculous but it's true--it happened to me. Of course, once they rule against you, I'm not sure how they can force the money out of you. It's been nearly a year and I've heard nothing past the initial "here's what you owe us, chump" letter from the law firm that sued me. I don't have that kind of money laying around so I didn't reply. Plus my lawyer was still planning an appeal.

So, the moral of the story is, file an opposition as soon as they go for a "request for summary judgement". I don't know how to file one, but I'm sure Google can help you learn. In the opposition you just say that you have no record of the debt and need to see proof. If they provide proof, check the date of the last collected dollar from you--if it's further back than your state's statute of limitations allows, then you call them on it. Supposedly, collection agencies can't even prove that the debt is yours in most cases.

Of course, the ultimate solution is to simply not ever answer the door. If I hadn't that one fateful day back in 2005, I'd never had to go through any of it. :(

I've also heard that when you get a letter from a collection agency for a debt, ask them to provide proof ASAP. Do this in writing. I've read that this scares them off and they'll leave you alone because most collection agencies can't provide the actual contract you signed when you applied for the credit card.

Now, all of that is according to MY EXPERIENCE. I COULD BE WRONG. I'm no expert in anything but my own experience (and even then...). So, do your own research! I do hope my experiences help people. :)

Guest's picture
Kimberley

I just had a collection company call me regarding a debt I have been paying a little bit at a time. I told them last month that I would be sending payment every month and thought that stopped the calls?

They informed me that the company (I owe the debt to) ran a credit report on me to see if I could afford a line of credit - is this okay to do?

When I said I had no credit currently he wanted me to tell him every debt I had so they could work out a payment plan. I told him I had never heard of anything in my life and why would I tell him all my debts and how much I owed people. Is this legit?

Thanks!
Kimberley

Guest's picture
Guest

I had a sleasy collector try this one on me about 16 years ago. All they want is to collect the debt in full because it means a bigger commision for them. No one can force you to take a loan. As for the collector who tried this on me, I refused and then he proceeded to get nasty and ask me if I was too lazy to make an effort to pay my bills. What the moron didn't know is that the call was recorded and I forwarded it to the AG's office. The guy got fired and the agancy, to avoid a lawsuit, cancelled the debt and removed it form my credit report. Know your rights and USE them!

Linsey Knerl's picture

Sometimes when you are extended credit or receive services from a company, you give them permission to run credit checks on you as needed per the terms of your contract (cell phones, insurance, and credit cards are big ones that do this.)  So it is possible that anyone with an interest in collecting the original debt may have permission to run a credit check.

However,

I believe that they are just trying to snow you.  Regardless of what your credit report shows, it will NOT show how much you make and the total amounts of all your bills (utilities, food, etc) so it would impossible for anyone to determine that you can afford a higher payment or quicker payoff.  

My advice is to NOT give them any more information regarding other debts owed.  That is none of their business.  They are not debt counselors with your financial interest at heart.  They are trying to get paid.  Period.  (And if they can get paid before your other lenders, awesome for them!)

While it is questionable as to how legally binding this may be, you can try the check endoresement contract trick.  The next time you send them a check or money order, write something like "endorsement of this check accepts the repayment terms of $(amount) per month until the debt is paid in full"

This way, if they do cash it, you can go back and say that by cashing it they agreed to taking payments. This doesn't always work, but it at least shows them that you are serious about repaying your debt on terms set by you, not them.

 

Guest's picture
Guest

How long will judgments, liens and collections stay on your credit report?
Does Georgia's statue of limitations us oral or written?

Guest's picture
Guest

They stay for 7 years unless you dispute them and have them successfully removed earlier (which I highly recommend trying if the debt isn't very old). Chapter 7 bankruptcy stays for 10 years and chapter 13 bankruptcy stays for 7 years. If you pay a judgment, lien, or collection account, your report must state that the item is paid. However, if it is something that is almost 7 years old, DO NOT pay it! If you do, the 7 year cycle starts over again. If a creditor hasn't come after you for that long, it is likely they won't and, depending on your state, the statute of limitations may have been reached. If the debt is that old, DO NOT PAY, even if you're contacted by a collection agency 10 or 15 years later. If you pay them even one penny at that point, you just started the cycle over again and this could open the door for legal action. They will prey on your lack of knowledge. Remember, knowledge is power!

Guest's picture
Guest

This post saved my home life and my sanity in 12 hours. It helped me get peace in my own home and it showed me that almost all the companies I deal with are willing to bend and break the law. I have been on the receiving end of many horrible threats this entire summer. Predictions of gloom and doom and the loss of my home, marriage, and my ability to take care of my kids. In just 12 hours they have changed their tune and I have gained control and no longer have fear in my life daily. Fear, they use it so easily as if it was a just another tool. I am done being a victim and done being threatened

Guest's picture
Laurie

She and her husband are seperated one in Flordia one in New York. She has no money and is being called 3 times a day by the collection unit to try to make her pay for the lease her husband turned back in Flordia. She did sign the lease papers. Is there anything she can do to protect herself from his debt while they were married?

Linsey Knerl's picture

I feel your sister's pain.  Since I'm  not an attorney, I can't advise on anything, except to recommend that she see an attorney (there are free and low-cost legal aids that can start her in the process of protecting her assets, if need be.)  Also, legal separation is usually a factor in an instance like this, as it documents with the court that she is trying to make a break from the union (assets and all.)  Whether your sister lives in a community property state may have some bearing on the outcome of this -- also, whether or not the Chrysler debt was incurred prior to the marriage or during will influence the courts to side with you or your husband.

Good luck!

Linsey Knerl

Guest's picture
Scott

Lindsey,

My wifes creditcard company has had a law firm contact her and they stated there was a judgement against us by Canyon State Credit and sent her a letter stating "terms" that we had to abide to, and we agreed to a bi-weekly payment plan. Now they have contacted her to notify her that on the basis of a few late payments, they have contacted our Payroll departments and if we don't pay the amount they(Canyon State Credit)want, they will attach our wages to the tune of 25% of our "disposable income". How can they do this? Are they legal, or just a threat to get more? Should I hire an attorney, can't really afford one.

Guest's picture
Guest

I unfortunately had to turn to a payday loan and still owe them $141.00. I am a single parent of three kids and can only afford to pay them in payments. They refuse to accept a payment plan. Today I had one of the supervisors call me and say that I must have my lawyer contact them by 1pm regarding my loan or they were going to be filing fraud charges for a bounced automatic withdrawl from my bank account. Also that they had put a hold on my drivers license and he proceeded to give me my drivers license number.
I explained that my hours and pay had been cut at work and that I could only afford payments of $25.00 every two weeks, they responded that I could not pay on my own terms and that I should have thought about not being able to pay before signing up for the loan. Again I told him my circumstances had changed and that at no time had I said that I wasn't going to pay off the loan. I had every intention of paying it off, only I couldn't pay in full.
Can they put a hold on your drivers license??? How do I deal with people like this? I need your help!!!

Sincerely,
Lourdes

Guest's picture
Guest

This normally never fails to make them disapear.

Attempt to Validate Debt.

Under the Federal Debt Collection Practices Act, you are allowed to challenge the validity of a debt that a collection agency states you owe to them. Use this letter and the following form to make the agency verify that the debt is actually yours and owed by you. Keep a copy for your files and send the letter registered mail.

Your Name
123 Your Street Address
Your City, ST 01234

ABC Collections
123 NotOnYourLife Ave
Chicago, IL

Date:

Re: Acct # XXXX-XXXX-XXXX-XXXX

To Whom It May Concern:

This letter is being sent to you in response to a notice sent to me on September 30, 2002). Be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.

This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you.

Please provide me with the following:

# What the money you say I owe is for;
# Explain and show me how you calculated what you say I owe;
# Provide me with copies of any papers that show I agreed to pay what you say I owe;
# Provide a verification or copy of any judgment if applicable;
# Identify the original creditor;
# Prove the Statute of Limitations has not expired on this account
# Show me that you are licensed to collect in my state
# Provide me with your license numbers and Registered Agent

At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau’s (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following:

* Violation of the Fair Credit Reporting Act
* Violation of the Fair Debt Collection Practices Act
* Defamation of Character

If your offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist.

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.

I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including but not limited to computer generated calls and calls or correspondence sent to or with any third parties, it will be considered harassment and I will have no choice but to file suit. All future communications with me MUST be done in writing and sent to the address noted in this letter by USPS.

It would be advisable that you assure that your records are in order before I am forced to take legal action. This is an attempt to correct your records, any information obtained shall be used for that purpose.

Best Regards,

Your Signature
Your Name