The Fair Debt Collection Practices Act (FDCPA), codified at 15 U.S.C. S 1692 -1692p, was originally approved on September 20, 1977. The California equivalent is known as the "Rosenthal Act", and is codified at Calif. Civil Code 1788-1788.32. These sets of laws provide consumers with legal protection from abusive debt collection practices. The purposes are to eliminate abusive practices in the collection of consumer debts, to promote fair debt collection, and to provide consumers with an avenue for disputing and obtaining validation of debt information in order to ensure the information's accuracy. They also provide penalties and remedies for violations of the Act, and attorney's fees are guaranteed to be paid by the debt collector if any one alleged violation is found to be true.
Both sets of laws provide the consumer up to $1000.00 for any one violation of any of the following, among others:
- contacting consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local time.
- communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that the collector intends to file a lawsuit or pursue other remedies where permitted.
- causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
- communicating with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer.
- contacting consumer known to be represented by an attorney.
- communicating with the consumer or the pursuing collection of a debt after receipt of a consumer's written request for verification of a debt made within the 30 day validation period and before the debt collector mails the consumer the requested verification or original creditor's name and address.
- misrepresentation of a debt or using deception to collect the debt, including a debt collector's misrepresentation that he or she is an attorney or law enforcement officer.
- publishing the consumer's name or address on a "bad debt" list.
- seeking unjustified amounts, which includes any amount not permitted under an applicable contract or as provided under applicable law.
- threatening arrest for not paying a debt.
- abusive or profane language used in the course of communication related to the debt.
- communication with third parties and revealing or discussing the nature of a debt.
- Contacting a consumer's neighbors or co-workers and telling them they need to reach the consumer on an urgent matter.
- contact by embarrassing media, such as communicating with a consumer regarding a debt by post card, or using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
- reporting false information on a consumer's credit report or threatening to do so in the process of collection.
These laws also require certain disclosures by debt collects that must be followed. Such requirements include the following:
- Identify themselves and notify the consumer, in every communication, that the communication is from a debt collector, and in the initial communication that any information obtained will be used to effect collection of the debt.
- Give the name and address of the original creditor (company to which the debt was originally payable) upon the consumer's written request made within 30 days of receipt of the S1692g notice.
- Notify the consumer of their right to dispute the debt, in part or in full, with the debt collector. The 30-day (S1692g) notice is required to be sent by debt collectors within five days of the initial communication with the consumer.
- Provide verification of the debt if a consumer sends a written dispute or request for verification within 30 days of receiving the S1692g notice.
- File a lawsuit in a proper venue.
More importantly, these laws contain an attorney's fee clause, which means that the debt collector who violates this act is responsible for paying for the consumer's attorney's fees. This ultimately means that an individual can retain an attorney, prosecute a case from investigation to trial, and pay nothing out of pocket.
FDCPA claims can be brought in State Superior Court as well as Federal District Court. Regardless of where the case is filed, or ultimately removed, the rights and obligations of the debt collector does not change.