Most Common Fair Debt Collections Act Violations

The
Fair Debt Collection Practices Act is loaded with
instructions on how collectors must act, and the dos and
don’ts of how to collect a debt.  While many collection
agencies do take steps to assure that they do not violate the
law,  a very large amount willingly violate the law. 
There are also parts of the FDCPA that collectors seem to either
not understand or just ignore the proper application.  
Here are some of the most popular violations of the FDCPA that we
see in our clients’ claims:

1. Threats of Wage Garnishment:  With the
exception of a federally funded student loan, in order to garnish
one’s wages, a creditor or debt collector must have a judgment
against the consumer.  That is, they must file a lawsuit,
serve the lawsuit upon the consumer, bring the matter to court and
win the case.  Unfortunately this last step is often too easy
as consumers tend to not properly respond to a summons. 
Regardless, a garnishment is not always inevitable just because a
lawsuit is filed.  Still, many collectors like to tell
consumers that if they do not pay the debt, they will garnish
wages. 

In our opinion, this threat can violate the
FDCPA in most instances.  First, if the collector does not
own the debt, then they can’t sue anybody for it.  So to say
they would be garnishing wages, when they can’t even sue, would be
misleading.  Second, even if they did own the debt, to simply
say they would garnish wages is misleading when they have not taken
any of the steps necessary to have any right to garnish wages such
as file a lawsuit.  A debt collector making this comment about
garnishing wages should be careful to qualify it by mentioning that
they can file a lawsuit, and if they win, intend on garnishing
wages.  But to make it sound so immediate and inevitable would
be misleading. 
 
2. Failing to Disclose the Communication is Coming from a
Debt Collector:  When a debt collector communicates
with a debtor, no matter how or when, it must disclose that the
call is coming from a debt collector.  This section of the
FDCPA was likely brought upon to avoid any tricks in the
communication – so that the consumer receiving the call knows the
purpose of the call and is not misled by the caller.  So often
collectors leave messages for consumers to call a number back about
“an important business matter” or some other emergency.  The
collector will not advise that the call is coming from a debt
collector.   In addition, when they call and the consumer
answers, the collector must make that disclosure.  It must be
on every letter, e-mail, or fax.  The failure to do so
violates the Fair Debt Collection Practices Act. 
 
3. Communicating the Debt to Third Parties: 
Often times, collectors call third parties looking for the
consumer.  They may call parents, siblings, old roommates or
ex-spouses.   It is not always done with a sinister
intent.  Often times, the debt was created when the consumer
lived at a different address.  Thus, a collector with very
little information about the person they were looking for, may call
these other places.  When a debt collector calls a third
party, literally several sections of the FDCPA come into
play.  However, for this article, we are focusing on the one
violation that appears most popular – leaving a message on a
voicemail or answering machine. 
 
Unless the collector is calling a personal cell phone, there is a
danger that once the message is left, another person will
hear.  Common household answering machines can be played by
any member of the family.  A family often shares a voicemail
account.  People have roommates.  As stated in #2 above,
when the collector communicates with the consumer, the collector
must advise that the call is coming from a debt collector and he or
she  is attempting to collect a debt.  Therefore, if a
collector leaves a message that complies with the law, the
collector is disclosing the debt, and if anyone besides that
particular debtor hears that message, the FDCPA has been
violated. 
 

While there are sure fire ways to prevent themselves from making
this error, debt collectors seem to continue to commit this
violation. 
 
Debt collectors have run over consumers and committed acts
violating the FDCPA regardless of their knowledge and training over
these laws.  The above are just a few of those we see as the
most popular violates lately.  Are you being contacted by a
debt collector? SmithMarco, P.C., has over 30 years of
combined experience practicing law protecting the rights of
consumers around the country.  Contact
us for a free case review.