Not All Collections are Debt Collectors Under the FDCPA
Posted: Friday, December 21, 2012
Most debt collection comes to us in the form of phone call campaigns, letter writing, credit reporting,
and lawsuits. The collectors are obviously the agencies and
lawyers that pursue the debts by these means. However, many
people find themselves subject to other collection abuses -
such has aggressive and nasty process servers and repo men.
To most, this is some form of collection. After all, the
process server is delivering the message from the creditor that
they are taking the matter to court. The repo man is taking
away a car or other chattel because a debt is not being paid.
Though the stories that come from the deplorable conduct of some of
these companies, we do not find any protection from them under the
Fair Debt Collection Practices Act.
Repossessors and process servers who are doing their jobs are
not covered by the Fair Debt Collection Practices
Act. The FDCPA defines a "
debt collector" as any person who uses any instrumentality of
interstate commerce to collect debts owed or asserted to be owed to
another. The term "
debts" however is defined under the FDCPA as any obligation or
alleged obligation to pay money.
A repossessor falls outside of that definition because they are
not collecting a debt - or better stated, they are not collecting
money. They are merely taking back what has not been paid
for, and not asking for money. Therefore, they are not
collecting a debt. As such, the person coming to repossess a
vehicle need not comply with the FDCPA. There may be state
laws that govern their conduct that should be reviewed. There
is one way that a repossessor becomes a debt collector. That
is when they provide you the opportunity to avoid the repossession
by paying some or all of the debt. One simple move like
suggesting that the consumer make a payment to them to halt the
repossession is all it takes and the repo man is suddenly a debt
collector that must meet all the requirements of the
Process servers, though they may make comments about collecting
a debt, are not collectors under the law. Their immunity from
this law comes from the language of the act defining debt
collectors -which specifically exclude them. The FDCPA states
that the term debt collector does not include "any person while
serving or attempting to serve legal process on any person in
connection with the judicial enforcement of any debt."
15 USC 1692a(6)(D).
These are a few of the thorns in the sides of consumers who have
difficulty paying their debts. Some of these companies have
the ability to get away with conduct that would otherwise violate
When you're being pursued by debt collectors, you have rights,
and we're here to help. SmithMarco,
P.C. has been protecting consumer rights since 2005. If you
feel that you're rights have been violated, please contact us for a free case review.