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Not All Collections are Debt Collectors Under the FDCPA

Most debt collection comes to us in the form of phone call Past _due _imgcampaigns, 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 FDCPA. 

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 the law.

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.


 

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